that his new modem was inferior for those functions that was confirmed by his own testing abnormally high return rates and a consumer survey that showed that purchasers would have paid over fifty three percent less but despite this evidence the district court here the outer beauty and this is we but the boxed in on page thirteen of our library or h p multimedia streaming internet browsing large file downloads music videos and high performance online gaming so i think the attributes is very similar california law you would look to you know whether dissuade could mislead a reasonable consumer whether the advertising is the type of advertising that could be misleading and i think it does matter here and i think our case is stronger than sterling in the re here they're talking about their own products not a competitors products they develop just as an upgrade of their over their older models and i think and to their own testing and so i think it's a reasonable consumer is out shopping  better and i'm going to pay more for that product like blazing fast internet old samick demon instant gratification i think those are the types of statements that would really be kind of exaggerated statements that are not objective really true but i think when you're looking to look at individual acts or categor find that a reasonable person would have been influenced by it that's the tobacco decision so i think that's a very low bar under california law and you know with the evidence to be put in i think a reasonable jury could easily find that was not obviously an important we have the evidence that you know there were thirty one percent returns that shows materiality we have the evidence that consumers over paid by over fifty three percent for the motives based  there's you know there is just kind of boilerplate legal language and you know even if they do have disclosed it doesn't print i think this court's decision in a williams makes it very clear that a reasonable consumer is not expected to go look at the fine print on the bottom of the side of the box to discern the truth when you know in large lettering it has that advertising is it misleading or has the tendency to mislead so you know i don't think harris can standards with respect to those effects that he identified out what with the standard against which he naturally the for sure in terms of industry standards i think you know that dr newman i think there was an industry standard that he relied on based on errors and intel's own testing where they relied on something called the south dakota benchmarks to provide a series of tasks under ordinary circumstances about what is wrong with the s b six thousand one hundred and ninety answer that it performs very poorly as opposed to what it should be my prior modem is better performs better than this one does and so does my current one so i think you know there's very clear evidence that these were significant problems and then when errors marketed them as an upgrade they clearly were not better in fact they were worse i know my friend on the other side mentioned the testimony of jennifer hayes she actually testified in her deposition that we j answer that question i think i take your question as addressing the implied warranty of merchantability which sets the standard of whether a product is fit for its ordinary use you know you know we think there is a lot of significant evidence that it wasn't good for its ordinary use but i would also point out that that is not the standard under california's consumer protection laws they use yellow and f a l which only say that you need advertising that has the tendency to mislead not whether the product is violent and you know very technical tom well every high level description well there is a technical talks no doubt in his report but he also put it in terms for ordinary consumer