producer of and seller of furniture covering and it started vice from l a as to what to call its new product and i advise that it should call it bonded there and also tested this product in order to determine the well yes it is if you put the you can name any lead to look product you can call a bonded leather as long as you identify the constituents of the product on the label they leather industries of america tried to change that regulation it said you can call it bonded leather if you disclose the constituents and that's exactly what dr nicholas cory of leather industries of america said they thought they was the prerequisite which is why they sent the product to the leather research laboratory which is owned oh i hate to be tested to they could put that on the labeling that's the only requirement and in fact that was confirmed when the body on any kind of test ask the public what their reaction would be  somebody said i purchased bonded whether they purchased well your honor it's on the label so presumably the public would have read the label but here are the customers of deora and the relevant customers were the retailers who would then sell it to the were about bonded leather and in doing so the district court simply made a mistake sometimes we come here after summary judgment and we argue that the district court acted as the fact finder here the district court simply made a mistake it overlooked the survey conducted by actually itself they found that consumers rather the readers of the ad not consumers understood it to be about bonded leather secondly and that klein report is that pages for thirteen for sixty one of the joint appendix secondly the court ruled i mean secondly the court overlooked an interview contemporaneously given when the ads were run by tom leon an executive at a which he expressed the linked the advertisements issue here with bonded leather so there should be no issue at all about whether these advertisements referred to bonded leather even though actually engaged in the typ an economist that was quickly called to identify to talk about finance your honor but this is specific this is exactly why the law is the way it is because false advertisers offering engage in these kinds of evasions there was another part that question  the question yes it doesn't indicate anywhere in the ad the words bonded leathernecks leather or anything like that well that that moves me to the second basis on which the district court granted summary judgment  and that was that the court found as a matter of law that there were other participants in the market who were selling bonded leather again the district court was simply mistaken so when it said bonded leather it had i mean but when when they understood it to it together and say this adds about bonded leather when it's not clear but your honor the law most emphatically is not that it has to say who the target is in the castro case cast will be pennzoil castro was not mentioned him and pencil false or misleading description a fact about the product yes  there is no there's no ad there's no it doesn't my client was not misrepresenting his product is leather his faults are right there warning the public beware of people who are misrepresenting people using scraps rather as reasoning you're saying that it was it said a false statement about my client therefore it wasn't about my client's no statement there's no state there's no reference there's not even a reference to well again your honor there was no reference to cast establishes right when nobody's doing a yarn nobody is doing that it's referring to bonded letter saying this is it says no what you are buying don't let yourself be fooled don't unknowingly fool your customer your as a lover beware true but you are not anywhere advertising at least according to you advertising your product as a lover nobody is so no matter what nobody is you're the one that's a point and you're saying you're the target but you're not advertising it as love her doesn't that and no it doesn't because the you have to look at the entire context under under the case law under this under scott etc under castrol and the context  this was addressing is undisputedly bonded leather and what they're saying is that to call it bonded leather is to call it leather and that's a lie and that's the false statement reach they're saying people who are the best you could come out with your inferences is that the wearer of people who are advertising bonded leather as leather right well no don't do that you know what that what they're saying is be aware of people who are advertising as bonded leather because they because it isn't leather  this representation because they're not representing anything what they're doing is admonishing they're warning people be careful about phony leather now is there any problem with that now what they're saying your honor if you if you put in the context with the tom lee on interview and with what the respondents declined survey said they these these advertisements are talking about bonded leather and what they're doing is condemning the use of the bonded leather even though they're saying leather that's code for bonded leather ok and the reason and the reason the case law is what it is is a parties engaged in this kind of code speak in a very insular hothouse of economic activity such as existed at the high point market they know what they're do not misconstrue the term bonded leather to be real they say that yes they could say that to be genuine leather when you say that they're also suggesting that something illegal is being done there's an inset in the advertisement that shows a cease and desist letter from years before that has nothing to do with this you have to put a magnifying glass up to it to see that and they're also saying suggesting that there's liability in that you can be liable but the overseas manufacturer cannot now if i c actually but nobody is doing that that's not happening what they're what they're referring to is is what the are i was doing they're suggesting with the or i was doing is illegal because they're calling it bonded leather this term bonded leather never been used in the furniture industry like persecution might be legally liable if you market this product as bonded leather and you know what does it says it says that the overseas manufacturer sure can't be liable but you can and then it has  leather the district court found that looking at an isolation i was a true statement but he said it in an article about bonded leather he was talking about bonded leather there's no doubt about that ok ok but that's comes back to the very same thing you agreed with me that no one could legitimately call bonded leather left or right but that wasn't the issue at hand a shorthand was whether you could say bonded leather and that's what they were saying they were saying ok thank you you're at least in this jurisdiction know exactly what a lanham act claim is and how you go about establishing a judge o'steen his opinion cited extensively from from scott's and so scott's basically says the first thing you've got to do chairman of the board of ashley basically testified that he was seeing a lot of problems in imported goods he said they say it doesn't talk about it but his testimony was from china in that in that he wanted to make all the american companies aware of these problems so there were a series of these i think six they addressed mattresses foam fire retardant issues and they all were in similar fashion this particular ad ran furniture market was in the last week of march two thousand and seven second ad ran on three thirty one at the very last day of the market they ran one follow up they had this one there's the whole series being ruined but that this particular ad is it really leather ran in the end at the  april thirtieth so that's that's the ad and that's what the plaintiffs contentions are based upon and it says is it really leather and then it describes a product that's not under the c definition it's the only time you can label a product leather as if it's the how of an animal anything else can't be labeled leather and that's  the sights the reg and he said in his opinion this clearly isn't just leather it's got a lot of other products in it in the end after showing all of that the statements made some upholster suppliers are using leather scraps these ads and basic point of this when they started quote the f t c but it basically is the c p s the advising that if you are selling a product in the united states it's been imported you can't rely on any assertions representation certifications made by the foreign manufacturer supplier of the product you've got to verify it and you've got to comply with u s law and you're responsible for that you being the u s company so it is not literally false i mean it's it describes the product the testimony the uncontroverted testimony from ashley's vice president of leather goods is that he had been a few months before these ads ran on a trip that over two years he'd seen products similar to this in china and that a few months before his last trip he'd seen this particular product which hadn't the plainness product are the our eyes product because this is if you look at it it's got a sheet of  n pictures it's got a sheet of leather well that sheet of leather is just the strips of leather that the testimony from several sources is they took the strips of leather glued them all together and made sheets out of it i mean a high didn't square so you cut off a lot they take the scraps they glue it back together make a sheet of leather and they bond it to the back of denim and on the other side they attach the outer poly argument now suggests that there's a difference that the scraps are shown in there are actually strips glued together where's the shavings are ground up and down that's our position are yes or it's a difference in the number of layers isn't it because  so there is a difference now will argue whether or not that's relevant or not but but the products different and then message the message i g he actually testified he saw any name this wanted leather coming from china yes or you know in our vice president leather testify that he had been over there these few months before and actually gone to a chinese furniture manufacture and had seen this precise product that we're talking about on a poster goods labeled as leather upholstery but what but what you're saying is i understand it is regard even right side the mature one was that was the disclaimer saying this will kill off up to four weeks after germination but but so that's that what it said but then scott's claim well wait a second  competitors picture mature that's the necessary implication you need and so that makes it wrong because the buyer is going to look at the mature crabgrass on the package and say hey this will kill my mature crabgrass in the course  on the on the top end because under little falsely damages are presumed you might go to state watchman but your argument i gather is any bonded leather whether it's this one which  are and that's you can read that read the f t c regulation that is specific they are not the entire high end of the animal which is the what you have to have to be able to call it leather but then on  by implication so if you look at this thing we say everything we say he's true but given the you know looking at it from the plane of spew point you go through it ok is this product shown his product we say it's not it's not the pictures it's not good morning may it please the court richard malone on behalf of we're asking that the district court's judgment be affirmed in its entirety the case as to a comes down to two quotes that were given by a scientist dr nicholas corey and they ran in two separate articles and furniture today in the district court correctly found that neither of those two quotes had a false statement of fact the first one was true and the second one was an opinion and i'd like to speak for a moment about each of those the first is the one that was briefly alluded to during counsel's argument we are in an article written by a woman named joan dr corey was quoted as saying calling it leather is outright deception outright fraud now the plaintiff concedes that that's a true statement as it was set expressly and the  that he has no evidence that anybody was deceived by that so we can't have implied falsity so the only way the claim could survive would be in that narrow zone of literal falsity by necessary implication and that has to be unambiguous and the district court correctly found that you cannot have an unambiguous statement when you were speaking in code and that's the word that counsel used earlier to describe that the word leather was being used as code for bonded leather and if you look at the article in its context the word leather was used and by the way i'm looking at page seven eighty seven in the  leather was used for times in the article by dr corey and each time the context is very clear that he was talking about leather and then he used the word bonded leather two times and it was clear that he was using bonded leather so there's no way i can show that it's on ambiguous that the one time they need it to make their case he said one thing when he meant another and particularly the standard ought to be awfully high when dr corry didn't even write this article this was written by somebody else mrs goodwin so if the suggestion is that he was misquoted that's another layer of why it is there is not an unambiguous statement by dr corey if there are no questions on that first statement i'm going to move to the second which ran a week later in an article written by susan andrews and that one doctor corey was quoted as saying calling it bonded leather is deceptive because it's a poly euro thing product with leather sprinkled on the back so unlike the milk of each case which was relied on heavily by the ira in their brief the facts which show why he believed it was deceptive were put right out there for the readers to to to read and to determine to draw their own conclusion in the milk of each case a high school wrestling coach gave testimony at two proceedings a school board hearing and then a district court and a reporter wrote in a story i was there i was at the incident where there was a brawl that happened at a wrestling match and then i was in court and i heard his testimony and he lied but the reporter never said what were the facts what actually happened and what the wrestling coach testified so the readers were left with the impression that this man was a liar and there not any facts given to back it up in our case all of the facts on which dr corey based the opinion that it's deceptive were right there in miss andrews article and that's at page seven ninety of the joint appendix and by the way the milk of its case even said that if somebody were to say that jones is a scoundrel because he believes the teachings of marx and lenin that would absolutely not be actionable because you're giving the reader the basis for the opinion and therefore it's it's an opinion not a statement of fact in addition to affirming on those two grounds there are several independent alternative grounds that the district court did not even find it necessary to reach which would also support on a farm and its the first is that the article the two articles just like the ashley ads were not about d r i they never mention d r i and they never mentioned the product itself and the plaintiffs never gave any cites in support of its assertion that d r i was synonymous with bonded leather on page fifty three of their brief they offer some cites but those sites do not say that and in fact we offered three or four pieces of evidence even though it's not our burden which definitively prove that i was not synonymous with bonded leather for example one of the articles about bonded leather referred to a different product called ocha pill and as was noted earlier d r i's own expert said that in two thousand and seven he knew all about bonded leather but he had never heard of until he was hired at the end of two thousand and eight that's at pages seven ninety six to ninety seven and eight zero one eight zero two of the record and tries to dismiss that by saying he's just an economist he wasn't a furniture expert this man had forty two years in the furniture industry he's in the furniture hall of fame if you look at his resume which is which which is in the record it's absolutely clear if anybody would have known that these two were connected he would known and in addition there was an internal document written by d r i at exactly the same time as the quotes were given it was july thirteenth where the arise internal product manager said we have to come up with a name to distinguish our product from the generic category so there's absolutely no way they can make meet their burden to show this was about d r i and finally my my last point briefly is that even if they could meet those elements they can't show any harm as a result of dr corey's two statements counsel admitted that the market are retail retailers that would purchase products covered by this bonded leather product and not one of those retailers testified in this case to say how they were influenced by the ad or whether it influenced their purchasing decision and the timeline shows why why that's true i's own witnesses said that in march of two thousand and seven at the high point furniture market everybody was talking about this new product and the controversy over the labeling the two quotes did not come until july fo months later so there even if there were a link between the quote unquote controversy and anybody's decision not to buy there is absolutely no link to dr corey's two quotes and that's an additional reason why this should be affirmed so just to conclude i'd like to say this case has been around now for six years at the motion to dismiss stage the district judge wrote a twenty three page opinion expressing skepticism of plaintiff's claims and given a road map what would need to be proven to get by summary judgment none of that was proven the district court then or the fifty three page opinion saying why there's no case here and this court used the word persecution complex which we did not use in our briefs but i think is an apt description and therefore we ask the judgment be affirmed thank you next to last paragraph he says it's difficult it's difficult to get terminology changed he said here they are part of the reporter's paraphrasing dan the quote vaunted leather is with us it's here but these companies are actually manufacturing synthetic laminate products that was the issue that's why he was angry he was a letter man he felt that this was a misuse of the term and that and that but he called the arai a liar which it wasn't he recommended to diarra he himself that he used the term  customers they were showing the product ok so do you or i was the only player in the market during the relevant time and these these articles these advertisements were undisputedly about bonded labor that they didn't mention dr klein survey in responding to me so there's no issue here that these were talking these weren't talking about leather they were talking about representing this product as bonded leather there's no question about that now your honor you judge me my fact my underlying question that i've asked you sort of repeatedly in here andrews quote corey is saying dr corey says calling these products bonded leather is deceptive because it does not represent its true nature right it's a vinyl  polyurethane laminate or a composite but it's not left or right if you talk are and feather someone does that make them a chicken and a question mark so he has explained his position that the term bonded law there is a misleading term and because it's really a composite and he concludes right there same but it's not leather and that's really the issue in this case that he's after he said let's not and that's actually  leather should be reserved for leather products ok that's what he felt he felt that's his opinion ok well it's well why judge jostein concluded that that gave him immunity first because he wasn't an expert but if you look at page seven of our br and the pages three ten to fifteen of the joint appendix l a represented to the f t c that it has frequently extensive involvement in helping its members apply the existing f t c guides to specific consumer products so it was an expert and it knew it wasn't to have some more references to the record here there's no question again that they were talking about bonded leather they were commercially motivated and they know that it was that it was  ashley and dr corey so they were both involved communicating about this common problem bonded leather and chris ross wrote is good is doing a good job of merchandising this product to manufacturers and that's in the e mail string three twenty three thirty three of the joint appendix that was their preoccupation ok if you look at  if you look at three thirty two of the joint appendix rush to cory i'm hearing that it is starting to pay off he's talking about corey's interviews the people are not going bonded leather if you look at the the pages eight hundred fifteen to eight seventeen of the joint appendix in an e mail exchange between lisa drayer and ron wanted the owner of ash the founder of ashley lisa darragh saying we have to develop the same product the same product the d r i was selling because we don't we don't have any competing product and they talk about price point they talk about its qualities they don't have a product to compete that was their concern so there's no question that this is about this is commercial in nature and it's about  corey sent an internal e mail saying he wanted to curry favor with ashley and help him with this so that he could get more business his constituents were the leather industry with respect to oka pill the article did not say all cupolas to market is bonded leather they referred to it as an as a as a product that had been around for a long time that wasn't called bonded leather and mr nana's testified it wasn't the same thing as his product it was it was it was actually cited as a contrast an example so their use of zero compel mr malone's use of local pub with all due respect as an example of a competing bonded labor product is just not accurate and the statement that we have to find something other than the generic category bonded leather doesn't establish the de or i was not the sole actor in the market first mark and i have to talk about try ca we're talking about what did the it whether the there chris ross who said it was try cast didn't work on the ad he was in china when the ad was issued run one it didn't know it try cast was and we have the klein survey that says that nobody believed it was try castro was never marketed