i'm all it's going to be a lovely morning we've got many cases to consider but i have to give a shout out to my class from the wonderful cardozo law school in new york i told them they needed to come and to say hello to my class which is in carlisle and state college i were watching the first two arguments by video oh very good so lots of fun for all and we're starting to good morning i'd like to reserve four minutes or minutes very well thank you go ahead sir thank you for sharing this matter the new jersey truth it's a more contractors warranty act imposes liability whenever a covered writing includes a term that violates a consumer's rights or seller's responsibility pursuant to n g s a six eighty s two point five consumers have the right to see written prices and sellers have the responsibility to post prices in writing at the point of the offer dynamic witty beverage offers are terms included in a covered writing the menu those menus violate sooners rights to see written prices and the seller's responsibility to post prices at the point of the offer therefore the plaintiff has a claim under take when you know what you seem to recover in this case well there's a there's no cell or lesser blah blah blah in any written consumer contract or even display any written consumer warranty no this letter which includes includes any provision that violates any clearly established legal right of a consumer or fly through the eye of the seller all right now what is included in the menus here the offer of the beverage itself they place beverage offers on the menu itself the word omission which the statute does not have that word in it yeah i also have activist judges reading words and i think here i'm not an activist judge i look at the words that are there well the and the words that are there are sellers responsibility and that is a word that you and i would agree with roger that they certainly know how to write statutes and they write this one very expansively and they've always interpreted it very new jersey courts the jersey courts have always interpreted that he's for it to include omission well they certainly did that in boston and versus warnock dodge when they they specifically stated in basel and that if you didn't have the price list that included fifty dollars creates a responsibility using the op parlance frantic one of you want to employ and the that interrelation creates a legally established right to also response to the omission or sub parlance of this consumer product fifty six eight s two point five which specifically states that consumers must be able to see the prices at the point of purchase and where the offer is made now that could lead to a c f a claim but you don't need a fully articulated c f a claim to have a tick when a claim and how do we know this and the lower court didn't have the advantage of shelton versus restaurant dot com but we know that now from restaurant dot com which this court sent over to the supreme court in new jersey to make a ruling articulate and once they looked at cigna and the lower court dismissed the c f a claim because they couldn't make out a complete c f a claim the supreme court said the take when conclusion in this court really needs to look at what new jersey does as a as a legislative body you jersey decided that they want to have very strong you know the consumer protection in new jersey and it's always been read to be very articulated i think that there were numerous issues with the with with the the lower court's rationale on how they got to the to the end in the mistakes that were made and i think that if you look at restaurants dot any repairs when that's not legal that will say that the less work and go on to the less the property without permission when that's against new jersey law and that were illegal under new jersey law to make sure that those that type of issue was not included in new jersey contracts your honor i see that my time is up i'd be happy to answer your question ok the if you look at the plainly reading of the statute omission is not in there and there isn't but there is an affirmative act as i stated earlier and as you can also articulated when they said that the act that triggers it the in the menu and i think that if you also look at the legislative history of the of the of of tech when it is there to be expansive it's there to make sure that there aren't issues regarding these covered writing they never made the offer in the menu for those that bridges we wouldn't be here so if them if the menu didn't mention beverages at all you'd have no claim i agree ok morning your honor may please the court rob hofmann for dine equity applebee's an international house of pancakes i want to begin just by explaining i'm going i'm going to i've been using the phrase to quanah see that pronunciations a little bit different i just don't want there to be any  nobody wants to say before name of the statute i think that's fair so why don't you put the prices of beverages on menus you know that's this case was dismissed on the pleadings there isn't a lot of record in there i can spin out a lot of different theories but i don't i don't have an answer to that in the record in this case what i want to begin by saying is the first thing that we should emphasize is that all the tools of statutory construction that are available this court indicate each legislature had a specific problem in mind and it's exactly the problem that judge roth indicated earlier is the problem of consumers being told that they don't have rights or that sellers don't have responsibilities but they in have that's clear from the texas judge roth indicated what that what this the text reflects is a very commonsense understanding consumers look to certain kinds of writings contracts warrantees notice is that a surprise since they look to these things as a kind of private law and so they don't flip through the statute books of new jersey to figure out what they can and can't get out of these contracts you know flip through the decisions of the new jersey state federal courts they trust that these statements these affirmative statements of their rights and responsibilities it would be so reactive so if we had to do consider two asian you concede that you know probably so i think it but i think it's important to emphasize why and i think this is part of the answer to that question turns in part on it just want to touch on why it is doogan and basel and and the jefferson loan case which came out our way so it's not as if there's uniform rulings on this matter but why it is that those cases aren't as informative as they might seem because what they don't do is they're not presented with a case that's a stand alone to quanah case that requires digging into the tools of statutory construction that the new jersey supreme court in new jersey law requires the text and the legislative history if necessary to inform the clear text in this case which i'll get to in a minute so i think what happened in doogan the secrets which the way i would analyze that actually is as follows so you can see that the bar and she's told or she gets information in some fashion or another that appear cost something like two dollars and then she goes and sits down the restaurant on the way the court i think understood that is that she was told that she had a right to a beer for two dollars she goes to that table she orders another beer and she gets a check that says it's green a quarter or something like that that's a false statement in a writing that you might expect to tell you what rights and responsibilities are with respect to the transaction now you can didn't go through it at that level of granularity at that level of detail because duke unlike a lot of the other courts is focused on a consumer fraud claim when the consumer fraud claim is present and that's for good reason because because you will see if they grow better than you than than the way your  explaining it and isn't that the point of your adversary that because the c f a is broader because the c f a it can be interpreted to include both an affirmative act and the mission they work is the specific problem that the new jersey legislature is interesting is these circumstances where you have affirmative state misstatements of rights and responsibilities that was a special problem to the jersey legislature and they didn't want those pla fs to bear the burden of proving ascertainable law so even when they don't have an ascertainable loss if you've been told something that isn't true and boston is a good example of what happened in boston you have you have a form that has a very clear regulation when it's going to congress all about itemization of fees one of the one of the line items is a registration fee that's a third party feet you're going to have to pay that no matter what you've got to register your car important because in basel and they emphasize that the outset of the opinion that the item is ation requirements exist so that consumers can look at the form and look at the charges and say this is ridiculous i don't want to pay for this i itemize for this document preparation there can be negotiation over what if you make it look like it's a third party it's a p f e you've got to pay the way you're misstating what the negotiation would be about so that's a situation where you might not have an ascertainable loss because the fee was something they're entitled to charge but nonetheless you've been told something false that inhibited the kind of rights thank you but if your ability to assert your rights in a way that the new jersey legislature wants you to have doesn't want sellers to be able to tell you things that are false that inhibit your ability to assert your right i get that totally but the see if he talks about not just the law to use the language that drew a few moments ago it's not just a clearly established legal right of a consumer it's also or the responsibility of the seller less or it's  established i'm right of the consumer response of the seller could have gone on and said or omits information that the consumer has a right to have what the seller has the obligation to provide but it doesn't see that and omissions are understood well understood in the law to be a different kind of long but that's not responsibility arises undertake when the right and one of those responsibilities as it is articulated in the c f a is announcing to consumers what prices they have to pay for certain consumer products why doesn't fall within that is that's not the kind of responsibility they were concerned with and that's it's not clear enough from the includes any provision language the legislative history just absolutely drives it home in no uncertain terms so there's responsibilities can mean lots of things one of the examples given in the legislative history is the responsibility of say a less or to provide the kind of environment and avoid negligence in providing an environment that might cause harm to alessi that's a responsibility but it's not a no it's not a it's not an omission on a do that's a different kind of problem so there's plenty of ways if content sellers responsibilities that doesn't involve turning to quanah into a disclosure statute that it was never intended to be and i don't carefully i would i would stand in the in the wind of some strong headwinds but i would do it and remember happily the new jersey supreme court has a different view scalia and i'm not sure just the silliest speaks for all nine here on earth but it begins far too many consumer contracts contain provisions that clearly violate the right of consumers are saying right there that's in there that matters even though these provisions are legally invalid or unenforceable in other words they're not worth the paper they're written on in fact but as a practical matter they're very inclusion in a contract to se consumer into thinking they aren't forcible there's a specific deception that they're targeting here and the punch line why this matters so much and for this reason the consumer often fails to enforce his right in other words there's this is a different kind of harm more severe than the typical c f a kind of than the typical consumer fraud so it's ok to provide a private right of action under these special circumstances that doesn't require a proof of actual loss if you're actually able to demonstrate damages you can recover the money why in fact judge greenaway you're concerned about the relationship between these two statutes cut the other way and more the see if they kind of ceases to be a robust the central defender of consumer rights in new jersey nobody thought that there's no indication the legislative history they thought they were producing that kind of a revolution in the new jersey consumer protection regime in the thirty years since this law has been on the books nobody suggested anything of the sort to me i think if yours is supreme court for its opinion on whether whether included i think not your honor i think that the information that you have in front of you is more than sufficient to if you ample indication of how the new jersey supreme court would rule this case this year under vs diversity jurisdiction is complete you have the authority and you have in previous cases the traveller's case that we cite in our brief the city of philadelphia case we said no you have to sided important questions of state law that you have admitted have noted have not been passed on by the relevant state supreme court and when you have a good and when you have text that's clear legislative history it's clear you have all of the tools available to the new jersey supreme court to make a confiden prediction of how they would rule you should and that's i think part of the obligation of diversity jurisdiction it's certainly implicit in the notion that federal courts have the right to resolve cases before the diversity you know i think i've i've covered most that i wanted to cover right it's obvious i don't need to go through it we've raised other arguments in our brief about whether a menu is in fact the kind of place that a consumer would look to to determine their rights responsibilities if i don't we are briefs are sufficient on that unless you have questions and likewise with whether the right to have prices posted on a menu is a clearly established right which is a slippery term in the statute that we've tried to give some content to i would just say that if clearly established means anything it should mean that you don't use a stand alone to quanah claim to in a way that involves the novel application of long settled statutes why is that because the phrase clearly established i think your honor that's that's what i'm trying to get content to that is that there is what savage part comes from the legislation that requires that merchandise have prices that are you know the merchandise not be sold without posted prices you know i understand that the statutes there what but whether merchant whether that phrase with that definition of merchandise applies to food items is then basically not passed on for for decades and so it would be a novel application of that's actually in this case and that's what we see that makes this not a good candidate for determining the right issue here to be equals if there are no further questions we respect the request that thank you hours follow up on a couple of comments that were made and i and i think that it's important to understand i'd like to just read one float out of restaurant dot com we also conclude that the legislator and truth consumer contract work in those act to permit consumers to know the full terms and conditions of the offer made to them by the seller or of the consumer contract into which they also said in restaurant dot com the purpose of the two quanah is to prevent deceptive practices in consumer contracts right prohibiting the use of the legal terms or warranties  point five but you know the other improper aspect of this is under normal contract u c c claim you know if they sell these beverages for a cheaper price at other points or times in the restaurant and you don't post the price well then it should be the most reasonable price and it should be the reason the price should be determined on the lowest price paid you know i mean that gets into a loss either way with regard to the beverages and of themselves but this is the legality of the contract and we know that we have to post prices at the point of the offer because in re johnny popper says that and in john henry tommy popper also specifically state that you don't have to interact with salespeople to find out how much this is you should be able to know without having to have that interaction as as we look at this interaction one of the things that i think he said was that the legislature didn't intend equipment to be this sort of super super statute that creates a much broader set of rights that had occurred before or had been in existence before and i'm i'm trying to figure out when we when we look at  it's in two weeks and there's an interaction with the c f a you have a series saying no you're looking at the wrong way it's much more narrow and we're  and my questions i'm reading more into it than there is that that's what i really want you to pull aside i think i think first of all this actually is clear that in addition to other statutes and laws and you could you can certainly have a a high dollar figure like an automobile and johnny hopper that's a big number and that would be triple the damages so really the c f a is this super statute if you want to if you want to claim it that way but that's what our legislators in new jersey have determine they've decided in new jersey that we want to have very very strong consumer protection statute and if you're going to be a chain restaurant come to new jersey and put menus out there that you don't have to be a chain restaurant while your restaurant