advertising brought under section forty three dollars a of the land act the plaintiff and the defendant are not competitors of each other but the claims involve claims for false advertising the classic tree care basically is a tree trimming proving and remove all service primarily in the kansas city metropolitan area angie's list of course is perhaps the leading internet based consumer rating service in this case the district court granted a twelve b six motion to dismiss on the basis that the plaintiff's claims did not constitute commercial advertising as section forty three dollars of the land act requires we claim in this appeal that the district co motion to dismiss for two reasons st of all it ignored express allegations which when taken as true in the plaintiff's complaint a stablished that there was commercial advertising  nd and perhaps even more importantly the district court base its decision on and old which needs to be updated standard for commercial advertising that this court and all of the other circuits have employed and that standard is no longer valid after the supreme court's two thousand and fourteen decision in lexmark now in any case in which you have a statutory construction the st place to begin is with the language of the statute itself so let's begin there if we can section forty three dollars a of the land act provides in a relevant part that there is liability against any individual or entity who quote incur mercial advertising or promotion misrepresents the nature characteristics qualities or geographical origin of his or her or another person's goods services and commercial activities so what is clearly required here is that the misrepresentations must be made in the context of what's known as quote commercial advertising now for years this court starting in two thousand in the procter and gamble one case has followed a test that originally came out in the southern defendant and the plaintiffs be competitors of each other however after that test and after procter and gamble the supreme court decided the case of lexmark and that was in two thousand and fourteen lexmark did things entirely differently in the supreme court said we no longer look at the relationship between the parties between the plaintiff and the defendant they need  not be direct competitors if each other instead the court's primary focus must be on the nature of the injury so the question is is the injury within what the supreme court said a defendant who says something disparaging about the plaintiff products or services and that causes an injury to the plaintiff's business or reputation that's the typical type of injury as the supreme court said that's the para to matic injury where you have a direct loss of sales which otherwise would have gone to the plaintiff it now goes to the defendant but in lexmark the supreme court was very clear court that was for a different they were analyzing a different elements of our procter and gamble test in we're talking about here today and they specifically said with respect to i think it's the  element of our procter and gamble test that they weren't they had no opinion on that in in the lexmark case yes so can we basically ignore circuit preceden where the basis for doing so is a supreme court case that didn't over rule or circuit precedent but instead specifically said that with respect to that element that they weren't touching it y they didn't say that they were not touching the rd element of the four part test i mean that but that was i mean that's the language though if you go look at our test language shows that that's what they weren't talking about  what they said i believe your honor is that we are issuing no the decision on whether this is commercial advertising or not and this is very important the test for a commercial advertising itself as four elements and it doesn't say in lexmark well which of those four elements may or may not exist it doesn't say that it has to be the defendant's goods or services it could have been for example and the defended and lexmark were static controls and were they consume ors or not or were they just business entities we don't know why the supreme court be what the th circuit has recently done in two thousand and seventeen in hand some broke farms and in that case the th circuit just specifically dropped in the rd prong the name defendant between buy and goods and services so that would completely comport with the supreme court's decision if i had one point that i would want to emphasize above any  other this morning to this court it's as follows we know now that on lanham act case the plaintiff and the defendant need not be competitors we know that for a fact so the nd prong certainly does not exist anymore under the gordon breach or procter and gamble test now i can conjure up or imagine hundreds of examples where you have a lanham act case in which the plaintiff and the defendant are not direct competitors let's just say just as an example let's say you have a disgruntled blogger who is out there now that has some grudge or a vendetta against the plaintiff's business and starts posting on the internet very false and scurrilous things about the plaintiff's business which causes lost sales and reputation under section forty three dollars of the land m act that's c we set those out in our brief but basically they're saying when classic tree stop pain advertising fees to angie's list then angie's list engaged in  program that there simply stated that there were no reviews or ratings at all for a classic tree so when a consumer went on the website to look up tree surgeons for example in the kansas city area there  be nothing now for classic tree consumers could find anything or worse yet angie's list sad there are not enough ratings or services to eat ratings to even them on the website when in fact there were plenty of positive ratings on them that caused damage to their sales and it caused it to go either way but the point i was trying to make your honor if i could you could not possibly imagine a case where you have a defendant and a plaintiff that are not direct competitors where you would now have the old rd prong still in play to consumers or they can also offer a freemium service where consumers can go to look up ratings for for for businesses or organizations that do goods and services yes it's not it's not they're not engage in the tree service business at all but under lexmark that does not matter if angie's list is saying something under section forty three a some other product even though it may not be there it says again if you go to that it says it either has to promote their product or promote or mischaracterize it can either be positive or negative can either promote your own product or you could mischaracterize someone else's product or service that's what forty three a says and we're saying that's exactly what happened in this case an misrepresented the quality of classic tree care services by saying that there are not sufficient ratings to even give them a rating when in fact they had very many positive ratings and in completely blacklisted you couldn't see them at all and then another point in time they were put down at the bottom of the list or near the bottom of the list before you'd have to scroll down pages and pages and pages before you'd even get to them so the point that i want to emphasize is that if you had a situation where you had a plaintiff and a defendant that were not direct competitors you could literally could not i can imagine i've tried to rack my brain to figure out a situation where would you then be able to satisfy the rd prong by saying consumers now we're into step by the defendant's businesses so products understand your we are making end in highly summarized terms we're making two types of clients number one that angie's list mischaracterized or criticized falsely classic  that's number one but number two it also mis characterized or misrepresented angie's list all own products and services and that's another point that we haven't talked about yet and that was that angie's list told consumers that the way that it would go d about reviewing service providers was based on actual reviews of individuals they would rank them eight through after something like that and that those reviews were not influenced by any outside factors and that no one could pay to be on angie's list when your district court found that  that allegation or misrepresentation was was i'm sorry time barred up yeah we're not appealing they said some of it was time barred anything prior to two thousand and fifteen on the website but anything after that was still not time barred and so we're not appealing that part of the decision on the time barred we're saying that those representation still occurred after two thousand and fifteen on its website and  its membership agreement so you're you're saying that that promoted angie's list product or yes we do not believe that after lexmark it is and it remains that you rely upon promoted the products of somebody else well it does that in the website it it does say that i have your claims that it promotes the products of others who list with and it does because they're ranked higher and st you have three claims yes that would i put i put in in that umbrella of claims about tree companies as one claim and then i put in the other claim what is it about angie's list its products and services as a nd and rd claim that is misrepresent yes generally yes yes i will refer to if you have any further questions i will reserve my it please the court my name is gordon cooney and along with my colleague mr corrado we represent angie's list members of the core issue that's properly before the court on this appeal is very narrow specifically whether three statements about plaintiff's tree care service that were allegedly included on angie's list service to consumers was commercial advertising or promotion for angie's list under the lanham act before you delve in that we were just talking about website new truck neutrality as a misrepresentation or what's the status of that your honor i think if we look at what's before the court the district court opinion was very clear that the only conduct the only statements and the lanham act both his own statements the only statements that were not were these three statements about classic tree service the rest were including the two thousand and sixteen statements were time barred under latches on the reconsideration motion it was quite clear plaintiff attempted to raise for the st time a continuing violation theory that tried to sweep in and say well the conduct extended into two thousand and sixteen with respect to the statements about angie's list and the district court said no that issue that theory was not urged in response to the motion to dismiss and in plaintiff's opening brief here plaintiff could not have been clearer at pages fifteen and eighteen of their brief that they are not appealing the latches determination and so the only statements that are properly before this court on the appeal are the three statements one the plaintiff straus had no rating or consumer reviews nd that strauss had not met certain criteria to be listed  and rd that strauss had no lawful local offers to extend those are the only statements that are properly before the court because those are the only statements the court did not find as time bar and in looking at those statements remember the and if you look at forty three dollars ebay those statements do not qualify as commercial advertising or promotion for angie's list either under the act or under this court's opinion in the procter and gamble one case i think it's important to look at forty three a's text forty three a's text limits false advertising claims to statements in commercial advertising or promotion propositional phrase incur mercial advertising and promotion is separate and additional to what the statements must be about mr burke talked about the fact that the statute says that it covers misrepresentations of the nature characteristics qualities or gypped geographic origin of his or another person's goods or services but there is a separate requirement that those misrepresentations must occur under the language of the statute in commercial advertising or promotion and that's the question that this court considered in the procter and gamble one case where  court's test from procter and gamble said show advertising or promotion must be statements for the purpose of influencing consumers to buy the defendants good or services and what the district court properly found was the three statements about the tree care service were not statements for the purpose of influencing consumers to become members of angie's list so there's no free floating the lanham act or mischaracterization of somebodies product or service not unless it's in commercial advertising or promotion there has to be a misrepresentation and it the context for the statements and the content of the statements qualify disqualify those statements as for commercial purpose advertising or promotion under this court's opinion in the because i think what's really significant members of the court is what this court said was the key test for for whether something is in commercial advertising or promotion is the question of what's in the statement for the purpose of influencing consumers to buy the defendant scooter services and the district court quite properly found at a statement about the characteristics of the tree care service were not made for the purpose of influencing consumers to join angie's list your answer be different if if we concluded that statement about the ratings neutrality or website neutrality had been  true but statements about angie's list scone characteristics are clearly statements made for the purpose of influencing members to join but those statements are not before the court because they've been found to have been time barred and the plaintiff was express in a entirely separate question and that question is was what types of plaintiffs have standing to bring the lanham act claim and the court rejected the notion that it was a categor requirement that a plaintiff be a competitor in order to have standing but the question of what kind of plaintiff has standing to bring a claim is entirely separate from the question here which declined to consider that question the question of whether the statements there were commercial advertising or promotion now interesting really just been what about assuming promotion of the products of another tree care company that would not qualify under this court's test in procter and gamble because the statement would not be for the purpose of influencing consumers to buy and of the language in commercial advertising or promotion what you posit may be sufficient to identify a misrepresentation about another's goods or service but the question is whether it appears in commercial advertising and promotion and what this court has said and what the other ports in the rest of the country have said ok then then let's change hypothetical that  says by these three tree companies and the plaintiffs not in those three precut ponies and then they do an ad for  qualified under the lamp and just setting aside practice i think what what's at the heart of in commercial advertising or promotion which is what's behind procter and gamble is there may be a number of different ways of doing it but at its heart it's about commercial advertising we're promotion that's designed to promote at some level the defendant's business and what this court has said is the way did determine that is to look to see whether the purpose of the advertising was to influence consumers to buy the defendant's goods or service so i think the right way to think about all of lexmark focused on who has standing to bring a claim the statute also allows misstatements of a variety of different sorts to be  a plaintiff who has standing and the statement has to be incurred advertising and promotion or promotion and that has it's at its heart is about communications that are broadly disseminated for the purpose advertising for themselves if they were if the content of the ad was something that was to promote itself they would be covered by by the lanham act excluding ad agencies from coverage under so whether an ad agency could be held secondarily liable for the misrepresentations of their client is a separate question but the ad agency unless it was advertising for itself your honor that's correct i said procter and gamble it because of the requirement of in commercial advertising and and promotion are part of what was going on here in some circumstances were that  consumers were offered a coupon or whatever you want to call it to get a death discount from the from the tree company and then angeles would get a unclear from the complaint what the purpose is behind the allegations in paragraph fifty two the issues about relationships between angie's list and and others are all dealt with the time barred period but again i think the quare question when it comes to false advertising under forty three essay is the question of whether the purpose of the communication was to influence consumers to purchase the goods or services of the defendant and there is no contention here that these statements these three statements about a tree care company had as its purpose to broaden angie's list membership and if you look at the plaintiff's reply brief the last page of the plaintiff's reply brief even the plaintiffs are focused on what is the impact of these three sentences these three statements on the willingness of consumers to do business although it paraphrased the language it noted very clearly that it was continuing to follow the gordon in breach test with the exception of the nd criterion this court would be standing alone in concluding that lexmark did anything to disturb the very well settled precedent that is the established test for what is in commercial advertising and promotion under the lanham act but let me ask you to assume we're talking about craig's list and not an list and that i put an ad that says you know use my service because it's far better than judge him give it to his service because he doesn't show up on time every time like i do where does craigslist come out on that for allowing me to put that up that's an interesting question your honor obviously different from here because there is no claim here that there was anybody statement at issue in this case other than angie's list so i think the question there would be whether craigslist has somehow adopted that whether there were disclosure made to make plain that the statements of others are not the statements of craigslist and there would be the possibility perhaps if there were an agency or something else established for vicarious liability  so i think we would have to look very carefully at the content of what was said how craigslist works and what was disclosed to consumers ok thanks mr cooney are times expired i think the case is ready for submission and counsel excuse thank you for the arguments