gunner's we're here today because the defendants released a defective product into the market that clearly had false and misleading advertising on the packaging the initial complaint plaintiffs alleged specifically that the packaging indicated it was a multiplayer game and that it offered cooperative play game play for two to sixteen players however at the time of its release that was not possible in a proposed first amended complaint which was also considered by the district court plaintiffs further alleged specifically that the packaging stated that it was quote featuring a grand theft auto online game prominently displayed in the middle of the packaging with larger tax than any other or sin of the packaging can we focus a little bit on the disclaimer because that seems to be the focus of this case and if you're going to make the argument and i think it's probably a good one that the disclaimer wasn't accurate because it suggested that at least at some point for some people some features would be available where realistically at least for some limited period of time no feature was available to anybody so  assume for the moment if that's not misleading statement trying to i'm having more trouble when i read the first amended complaint to figure out how you're your clients can allege reliance on it you get a disclaimer that says in effect this product may not work for some folks and and your clients say well i realize that false statement because the true statement would have been a war for anybody that false statement laden you know in reliance on that false statement i bought it tell me i tell me how you can well your honor the judge never got to that because he thought there wasn't a false statement or maybe we just ought to let him sort that out but i think it's him in this case we're going to tell me how can you rely on a statement that says this plan to me not work  that we don't i don't believe that's what the disclaimer says welcome back it we know exactly what it says we can read it it says it says all features may not be available for all users right and my argument in the breeze was that it turns on the word the second word all may not be available all yours necessarily implies that it is available to some right but how would your clients in buying it what reason did they have to think that they would be among the favored class i'm sorry that they would m periods of non operational planning on operation by the software company but to cover periods where the networks are having issues such as the playstation network and the x box live network which are not operated by the software company but here we have the software company not providing the software to make the online gameplay available yet the packaging for two weeks for the first two week every which was crucial to their sales and they did i think three three billion in the first three days of the fastest selling game ever and that's because of the timing of the release of the new game systems which it would not be playable how is how when your clients i mean the industry your clients ranger because they couldn't play for two weeks but how in the monetary injured well the argument is this that had they known that they wouldn't be able to play that for two weeks and as it were they came out of work really able to plan for an additional two weeks because it wasn't working properly by that time there would be no reason to invest money  why because i didn't just wait two weeks to buy because that the game wouldn't have much play value due to the fact that these are plaintiffs were tens of gamers who were planning on buying the new decks generation systems which were due two months from after this was released so the closer you get to that release say the new systems the less likely people are to buy a because it's not going to have that replay ability because all your companions are going to be having the new system then i understand the judge  the district judge didn't go off and damages i'm just i'm not a gamer so i'm sort of curious as to why waiting two weeks who's is the damage are you saying your damages are contingent upon the fact of the third party issuing new gaming systems and saying that the damages are contingent on the fact that they weren't able to access all features of the game at the time they bought it and that had that been made clear to them they made it very likely have not chosen to purchase in the first place and so you're seeking a refund a refund or some type of compensation i know that descendants tried to appease gamers by giving them online money in the game because there was a game at adam that no i'm not talking about the you didn't sue the retailer you sued the the manufacturer here did you seek a refund or did not contact the manufacturer and seek a refund the normal means would be to return it to the store and the stores will not so what are the precise damages you're seeking in this lawsuit would be some type of i guess the way they would normally handle it would be give a discount on a future game or give a refund for people who can show that they bought it during the first two weeks or gameplay particular well there actually is a single player game you can play by yourself at home and that's that's all you could do for the first two weeks and that's my argument that the defendants came with the expectation they would play it online because that's all they do so much like the call of duty games they  do have a single player beacher but most people purchase it play online against their friends and that's the argument here really matter what the evidence of what other people did was that's a summary judgement issue the judge may have erred in granting a motion to dismiss but i don't see why we should consider other evidence in can in figuring out whether a complaint is incorporate them into your complaint but i want to go back to judge rice's question if i may for a second the judge didn't formally offer you an opportunity to amend but you had proposed an amended complaint and i think she said that wouldn't solve the problem she said it's futile so you're not contending that she carried in denying you the right to file one more  because i think it's an important concept in this case the dismissal of the original filed a complaint which we referred to in our brief is the operative complaint is obviously reviewed under the no standard the decision to  allow the amendment on the grounds it was futile is a different standard and we think it's important in this case a different standard in this case after all what the judge said to give her credit is i don't think you've alleged anything misleading and  the yes you may have been wrong in your conclusion but but she she didn't say she wasn't saying well i actually sized my discretion not to let you file an amended complaint she said it says the same thing is the first one with respect to this issue and i don't think that's enough in fact if you look at the complaint i don't think that's accurate i think that's true of your original complaint contain no detail contain no statement that they allege was false there's no there's no specific allegation as to what or when or how it was false that let me put it this way here's what i'm having difficulty with your problem with your argument if you're telling me she exercised her discretion not to let them file a first in many complaint with more detail i would find that an abuse of discretion and after all we've said many times that when you dismiss a  characterization of it so i can i can read it to you but i won't do that why isn't that second statement that you agree with false so to the extent it's said to the extent it says that that well if you just used the second same isn't it true that not that that this feature was available to no purchase or trade and it was ok if we find that the disclaimer represents purposes of discussion she didn't then separately analyze whether or not if it was misleading there was reasonable reliance on touch and she just simply said because it's not a false or misleading you couldn't have reached if you didn't have a reason you didn't rely on to do your detriment correct that's right ok so so let's get back to what why do you think this statement is not misleading misleading it to me when i read it just let me tell you i know nothing about online gaming but when i read it it suggests to me that at least some users will have access to the features you may not be among  player game and the version this online aspect at the time it was released was only a small portion of what this game was about the game itself and the prior iterations of this game were the games that are played on the console in a single player mode  of the grand theft auto four game that it but but it is so it was a new feature and it is for as plaintiffs of have attempted to put in some evidence on this but they are experienced gamers they understand what these packages mean they understand you know what it what is was out in the marketplace i would also just on the point of whether this statement is misleading it's requires an inference that we just our positions it's not a reasonable inference to assume that it means some people would have  access so you think when you buy it when you buy this package you should be on notice that no one may have access to the on line but there are times that you may not have access and no one no one will yes i don't think it's anything contrary to that i think there's an evidence outside the four corners of the complaint to the two first exhibits or the two that were she accepted and those are the actual game packages for obvious reasons because they were they were described in the complaint that the rest of the exhibits that we attach which are part of course on the record were she did not rule or inadmissible she ruled she didn't need to look at them because she felt the package and clear enough to the extent that you have a question on the packaging we have evidence in the record that establishes of the game of the game company the defendants were quite clear with the public for a long period of time that the online version was the online aspect which is a single aspect of this game which is a complex game it's a single aspect of free a free element of the game in fact was not going to be available for the two transcript it wasn't a lie that's that doesn't have to do with the complaint it deals with your defense you never filed an answer it's not offered for the truth of the statements i don't want to tell you i'm not arguing but when you hear perhaps to your point your honor it would it would require them would be if you found that this was filing of the first minute complaint and whether or not she was given the allegations in the complaint whether they were sufficient to make out a claim that the representation was misleading not a determination whether it was actually misleading that whether the complaint states a claim that it was misleading if you play may be frivolous we don't know but that's not that's factually the first question is whether it's legally it wasn't misleading and i don't think that's what she should do necessarily on a twelve the six motion to dismiss it was that look at the allegations in the complaint and giving them and then the light most ruling was simply that that's not what it says it doesn't say it would be immediately available and it would be unreasonable for you to rely upon that based on what the pageant actually says and so you know and we  misleading could you address the reliance issue you know the judge didn't because you said it was misleading therefore you couldn't hide it can you respond to their reliance theory i'm just i'm i'm having some difficulty in this case figuring out even if it's taken at face value why anybody would should assume that that the online gaming would be available to them as opposed to somebody else during the first and we have it and i think that's a very valid question and the issue then you know when when for someone who has experience with these games and to understand what these labels what these labels mean at the packaging says i think the key question is is it reasonable to rely upon something that you understand relies upon an internet connection relies upon a lot of other aspects it's not always available and that's that's a fact so for for them for the plaintiffs to come in and take the position that this was clear on its face that this was a mediately available to them is an unreasonable conclusion for them to rely  know and beyond that i think the issue you pointed out as to why they would be in the so called as you describe it the favored classes is another very good question why is it that to the extent that some people would have access to it why would a reasonable to believe that it would be then and we submit that the answer is that it's simply not reasonable and that they haven't in fact actually relied and you know that's a conclusion that you don't think they really even appealed before your hon now if i could move on for a moment to some of the economic injury points that your honor raised i'd like to to do that you know but below the court relied upon the quickset decision to determine whether there was an economic injury and that's the proper standard but i think that there's we submit that there are facts in that case that make it very different from the facts in this case the kwikset case that the plaintiff had purchased a lock that said it was made in the usa and it was turned out to be that was a misleading thing was demonstrably false statement that in fact the lock wasn't made in the united states the plaintiffs came before the court see them running out of times or try to pick up the phone before the court and ask for a refund because they didn't want a lock that wasn't made in states that's an economic injury that's a logical economic injury we have a far different scenario here we don't have plaintiffs who are saying they don't want this game they've never said that in fact what they're saying is they want it but they just one of them have full access to everything for those two weeks that's an position and we think it was conceded below actually and we think it's a fact that it was available after two weeks this is an argument that i'm not familiar with and it's not one that the plaintiffs raise i think counsel in the in their complaint they asked for a refund and so we have to take that on face value and if they ask for a refund now i agree maybe we get down to summary judgment and you can prove that not only did they keep the game but they've used it for the last three years right for twenty five thousand hours and they didn't want to refund they've used it fully and and you may develop that in depositions and bring that on summary judgment and show that they didn't justifiably rely on they didn't did not actually seek a refund but were on a motion to dismiss and so they're what they're asking if you listen is some kind of the words of counsel just a moment ago seeking a refund or some kind of compensation and that was described as a discount on a future game this is a speculative theory of damages and it's not clear to me that they've never come and it's that we don't want the game we never want the game because of those two weeks well they said the word refund and that's the magic word i agree with you that they're not going to get expectation damages or incremental reduction in a future game but if they said i want to refile on i've never used the game it sat on my shelf for the last three years you can have it back there they've stated a cause of action and under their compliance not a cause of action they  raise an economic injury but i still don't think they've stated a cause of action just that by that point that statement alone however i would submit that what they have said is a little bit different from i want to refund it what they've said is i wasn't happy with this game and i or deprivation of money or property sufficient to qualify as an injury in fact quote unquote in economic injury and to show that it was the result that injury was the result of the false advertising with what they're saying here is that they didn't have full access to this game for two week period that's their complaint that's not that's not a that's not a refund and what they're looking for is to be compensated for that three week time period whole series of documents and we submit that that was full of improperly filed and it wasn't was in accordance with with your rules but beyond that it's not clear what these documents are intended to do least from my perspective there they