dabble allege below that the th and defendants transmitted to false commercial statements about go data to current and prospective customers of both firms by email and also transmitted by us mail false statements about their own business and a media cat defendants we allege worked together to send out the e mails and the media kit specifically is a document that is put together by both the franchise or and then transmitted by the franchisees around the country so that document is a collective document of all of the defendants the specific e mails were sent out by the local defendants but the allegation is that they were set up effectively to protect the franchise which the national defendants have an interest in what i'm trying to sort  it's important because the august st e mail relates to the gym front range and their activities right yes your honor and frankly that is one of the things that i think an amendment to this would clean up because there were result that she was dismissing with prejudice without leave to the met now it is worthy of note that we had amended previously before any motions dismissed were filed to clean up some of the claims before so we had used our and them in a right and we have to concede that nevertheless as we discussed in our brief the we feel that the particularly when the district courts around for dismissal of this particular claim was based on a failure to plead certain words related interstate commerce which indicated were required that leave them in should have not one number two in your response to the motion to dismiss the only request for amendment related to the sherman that klein didn't yes your honor that is correct i don't have time here on th they will know that that's the point your honor is that it was there as cited in our brief as to the media to get our pleading that is the actual complaint specifically said that that media kit was transmitted by u please go ahead policies or are the words channels or instrumentalities were not used by counsel who argued that portion of the claim but the arguments themselves that it we need not show there was a substantial effect we need show that they were transmitted those arguments were ma what the difference i mean if you're making a channel there instrumentalities of interstate commerce what you're saying is if you put it into that if you use the internet or if you use the mail that's it that's enough you've got interstate commerce that's a that is a distinct and instrumentalities cases where the th circuit specifically held that is long as you played it was an e mail that was a nexus under a channels or instrumentalities analysis so while the the attorney did not put those words in their brief they cited two cases that were decided as the centerpiece of their argument they cited two cases that were decided on channels or instrumentalities basis that is that no neck no effect on interstate commerce need be shown the mere fact it was sent by email is disp in district court related to substantial effect on interstate commerce if anything and i don't see how you did anything to alert the court citing the case  doesn't alert the court to an argument the judge doesn't have an obligation to read through the cases to see what sort of theories appeared there that weren't raised in your briefing or argument honor in citing doe versus smith below in our briefing we didn't just cite the case we told the judge what the holding was and we said that the holding was merely pleading the use of e mail is sufficient to establish an x or stake in his next interstate commerce even the plaintiff is not alleged e mail ever crossed state lines so i think while there is no doubt that under ideal circumstances that that would have been more explicit and therefore i see your honour's concern and i absolutely agree with your honor concern that that could have been better brief but it was not unfairly not put before the court or put before the defendant it could have been done better period there is no argument and should not have been done more clearly in fact the read your you incorporate the argument under the charter net i mean even even make an argument in the land related lanham act as white interstate commerce and isn't that important because we're focused on the specific statements in question whether  they travel in interstate come right that is correct your honor whether the emails and the media get themselves those communications travel interstate commerce and it and so so the incorporation of paragraph the complaint how does that get you there i think your honor that the the six circuits just the six and seven circuits in saying it just saying it was transmitted by e mail and presumably just saying it was transmitted by postal mail that is sufficient to establish the nexus that is that is what we are relying on because the defendants in sydney the plight of in dover system it did the same thing that we did here which is all they so merely pleading that it was in an e mail is sufficient merely pleading it's in postal mail is sufficient you don't have to make an allegation that it moved in or substantially affected interstate commerce because the united states supreme court is specifically held that congress may discussed below we cited to the cases and discussed the two cases in which that argument was made there were a lot more arguments below because of the other claims and because the substantial effect on their state commerce is most certainly necessary under the sherman act and therefore there was a lot of discussion that once the sherman act claims were dropped on appeal then the bulk of those arguments simply aren't relevant anymore what's relevant is the portion that discusses the two channels are instrumentalities cases it's a relatively small interstate channel and because this court has already held in the utah lighthouse case of the internet is generally a channel of interstate commerce and emails travel through the internet in the email is no different than a truck on the highway or a piece of postal mail travelling through the postal service court quoted where in our in our actual complaint we stated that the media kit media materials transfer which transmitted across state lines through us may and united states mail is categorically a channel of interstate commerce and therefore at the very least the district court plainly err on inciting the very place in the complaint where we say postal mail and that it is that your theory is properly before it and then that still remains to be decided but ok fine go ahead please i would say your honor and i think we make this point in the brief which is this is the jurisdictional element and therefore a matter of jurisdiction the court should be more lenient in hearing the arguments talking about is the question of we have to be alert to early jurisdiction generally the way that that's a one way ticket because the way it works is we you know you don't if you are challenging jurisdiction we will consider that at any point but if you are trying to get jurisdiction we don't have to we don't have to honor any we can all live with your principle as we ordinarily the court absolutely can do that and then we're back where we were before which is whether there's anything here that sufficient to allow preservation of and we would we would say your honor that on the media kit issue that at the very least that was so plainly error and that er was brought to the district court's attention and the district court discussed the fact that we cited in our in our both in our briefing and in our complying that that went by us mail but the district court said nothing about that the district court seemed to take notice that it was transmitted by u s mail but didn't seem to think that was important even though it was brought to the district court's attention that that is interstate commerce that that crossed state lines again and that is a specific allegation of crossing state lines even under the district court's interpretation the district court own analysis is contradicted by the very facts the district court cited in that eight foot no money concede that if you did not preserve the issue below you lose i think we have to concede that it is not actually say that no the court can choose to consider the argument on appeal but the court need not to say frankly we're on the mercy of the court on that issue we would ask the court to consider the importance of the issue and the magnitude of the error and take those things into account when making that analysis but it is certainly well within this court's discretion to decide either to consider the arguments even if they've decided that you decide it's a new argument to appeal or to reject the arguments we would have no objection one way or another it's within the court's discretion yes your honor i would say to utah lighthouse case does precisely that under the lanham act trademark action which in that case the court says is the same as an unfair competition action the court specifically says the internet which again e mail not proper party on appeal the individual defendants are employees of insta marketing  required to leave that element and then it failed to do so there is one reference in over one hundred dollars paragraphs of the complaint ever st to interstate commerce and that is in paragraph fourteen of the amend to marketing produce the actual magazine that these companies produce that is directly mailed to homeowners there's no reference whatsoever to the false the allegedly false statement false representation yes but that's different than the response you gave the judge cards which was there was no incorporation at all right that's true i correct that i my understanding  didn't argue it in opposition to our motions to dismiss it was this issue this fact was raised for the st time on appeal and there's no support anywhere from what i was claiming what about the groves case what do we do and if it was relying on the interstate next as standing requirement for the sherman that claims that and that's all that going down did in its opposition and it wouldn't have addressed and didn't address the interstate commerce well the fact that the district court talked about groves i mean what effect does and have in the question of preservation whether it's something that's appropriate for us to reach and in terms of preservation the argument was never so even if go to never argue the point never suggested that there is if the district court on its own initiative addresses it that issue is preserved relates to interested activity there's no allegation that emails cross state lines that you miles are sent by people out of state everything was and are metro area and so the court was focused on this interest and activity which requires for the elements to be sufficient that there you know objection that the intrastate activity can space substantial impact or effect on interstate commerce but those allegations don't exist in the  good morning my name is tom quinn and i represent defendants t h a management l l c the homemade holding company l l c in campbell we are in can the underlying matter and for purposes of today we should range media kit is identified only in paris thirty seven and thirty eight my client's the th in the franchise or were not the authors or senders of the subject emails my client t complaint identifies with specificity that a single media kit was distributed by the franchisee t h m front range and that and that speaks is to the individuals that were involved in the therefore there is a complete failure to satisfy any lanham act element against she aged and management under the world wide as those asian versus pure th circuit standard and as noted