four minutes for rebuttal time if it's acceptable to keep track you have to keep track of your time very well thank you and i would like to focus if it's acceptable to the court on what i believe are the two core main issues here in this appeal and those are first whether it was appropriate for the district court to dismiss this false advertising claim at the pleading stage on a motion to dismiss that is whether this case represents that rare  that maybe so your honor but in general and false advertising cases i think it's almost get me to the heart of this tell you what my problem is true and you educate me and unless you can show evidence that nobody is charging that i mean when i look at manufacturer suggested retail prices there are some things what used to be with cameras nobody paid list price and they could even advertising them they they called they they just in the photo magazines would say what the street price was but it depends on the goods for example if you want to leica quitman you either paid manufacture suggested or mark up above that years ago at fairbanks didn't have many four wheel drive vehicles available and you always had to pay a markup over the manufacturer's  retail price even on a car there are other things where you always pay less i don't know if anyone pays retail on clothes well that's a that's a good point so i don't know what churches shoes one day a year they sell them for half price in the rest of the year they're manufacture suggested retail for the men choose i have no idea and the pleading doesn't tell me well i don't know i said it was at worst a deception well at the outset we have to at this stage of the litigation take allegations as true all she said is that she felt misled there's nothing in there that explains why that is plausible and any objective science it seems to me there are three possible things anybody looking at compare at kno ws that you're comparing to something have so you have to compare it to something they website tells you that is comparing to the m s r page and it's accurate if it's compared to the m s r p your theory is i compared to what other people were selling it for and they are there's only a one dollar difference according to what we have on the record the third possibility is it means compared to something similar but not identical out there in the world there's no suggestion either so there seems to me to be in the complaint nothing that plausibly connects her feeling to anything objective way plausible in the ga part of complaint she alleges that she did not believe that when she saw the term compare at that it meant and this r p and that seems to me a reasonable interpretation of the phrase compare at there's many other retailers major retailers like ross t j max the law is pretty clear that the consumer is not required to look beyond the advertisement though if i go find it so that your theory it's it's said sixty dollars but actually it was fifty nine dollars is that a lawsuit well let me respectfully disagree the theory is that ms sperling says on more than one occasion in the briefing i can cite you to the record if you'd like me to on multiple occasions throughout the operative complaint that w and then i walked by other shoe stores never selling them the same price or cheaper than d s w so evidently i was fooled into thinking i was getting a bargain which she didn't say that know what she says is i walked into w and i saw two prices the selling price and compare at price i did not believe that that compare at price was the m s r p i have lost confidence as have many other consumers if you read the f t c pricing guys federal trade yes but even going on her theory that's my point her theory was that it was some other retailers price and it said sixty dollars and the other retailers fifty nine dollars so i guess i just have a really hard time seeing th client well that fifty nine dollars i'm not quite sure is accurate i think fifty nine dollars was for like a size thirteen shoe or something like that right there was one issue that we were able to find in the pre lawsuit investigation that sold for fifty nine dollars close to the sixty and it was this shoe that nobody can find it's a size thirteen the normal one i believe was about twelve they also process let's find it extremely implausible i mean we do have now of the false standard where there has to be some plausibility right and leaving aside the ninety question i just find it very difficult to see a plausibility standard met to say if i had known that this mythical price was  i would have bought the shoes even though i liked them they were cheap and they fit me nicely i just find that extremely implausible well as i said and i'm just honestly speaking for myself i understand and i can respect the opinion but i believe that like i said at this stage of litigation we take what misspelling says is true and it's and i don't believe it's implausible she say anything except expressing her feeling that she felt like she was being ripped off or had been ripped off yes i need a basis for why she felt like she'd been ripped off because she didn't she wasn't looking she thought that the compare at price was something other than m s r pretty she thought if the discount that she thought she was getting was off the m s r p she would not have purchased it why did what she says and why not because she doesn't trust them as our people i would direct the court's attention to the federal trade commission guidelines sixteen c f r two thirty three point two this is going here's where the federal jury look at the federal trade commission guidelines and they're not the law and i don't give rise to a civil cause of action i'm still trying to find out what she pleaded that would satisfy rule nine b beyond a feeling of being ripped off well rule nine b will feel ripped off when they pay a dollar for an apple it doesn't mean they are being ripped off that's true but the elements of the cause of action for a false advertising claim are that the advertisement is deceptive or false or misleading or has the capacity or tendency or likelihood to mislead or confuse a reasonable consumer misspelling says when she walked in and she saw the phrase compare it she didn't think it was m s r she also says if i knew it was in a sarpi i would not have made the purchase and the reason i bring up the f t c guys is it is it's one indication that they speak about how consumers and this is going back thirty forty years have lost confidence  honor brings up this benefit of the bargain argument which i would point out was flatly rejected in a no host versus calls out of this court four years ago back in two thousand and thirteen the question is not whether she got a good pair of shoes a good price that is not the question open the question is is the plausibility of the allegations in this complaint right that that she merely have that knowledge that she could have had from the website but didn't and i understand that she doesn't have to go there not only did i have to go there she seventy years old she doesn't go on the web and so the plausibility i think that gets to the question what you're really saying is i don't feel it's plausible that had she known i don't believe or i think is what you're saying i don't believe her or i tend to not believe her our yeah i think that's what it's about how do we how do we apply it if at all because it asks us to make a judgment you know this is a very i find this actually a very hard theoretical question because we're asked to decide whether pleadings are plausible we that's why i bring up the sort of i think it's understood that consumers inherently do not trust m s r people maybe would say she doesn't trust the m s n she wouldn't have bought it and that is what's required to put up a false advertising claim that added use me to buy it and i would've bought it had i known the truth then i've lost money or property i lost the benefit of the bargain i lost not the benefit of our days i just i lost the bargain that i thought i was going to get think if i'm going to have any rebuttal time i'm going to have to sit down and i can go ahead and look for more instances of the point in our brief we point out i believe at least three of four instances in the complaint if you look  see i believe it is one twenty at the bottom of paragraph one twenty she says i didn't know this was the m s r p had i known i wouldn't make the purchases and there's other instances i'm in there as well i can certainly look him up i can see somebody something i wouldn't pay retail i wouldn't pay him s r p but i don't understand what the connection is between had i known the compare app price was a sarpedon certainly there people say i never pay retail or wait for things to go on sale  but i don't understand what that means to say had i known a price i'm not buying at with the m s r fee miss i really know that bargain hunter that this court talked about in a no host versus calls they're trusting the retailer to tell them that you're going to pay this price but you would pay this higher price somewhere else that i think a big unanswered question here is if d s w is using the m s r p as but i absolutely will i wanted to correct decisively a misconception which we see at page two of the reply where we read the ultimate question here on appeal is whether it was proper for the district court to disregard plaintiff factual allegations and concluded the pleading stage that she was not or could not have been deceived or misled by d s t v as compare at crytek yawners that never happened that's not what the district court held and it's not what my clients are arguing here on appeal present conclusory allegations the defendant's comparative reference prices do not represent the prevailing market prices for defend its products and nowhere does the sac explain how he defended comparative reference prices are inflated or why they do not misrepresentation why how was it deceptive why is it deceptive and there's another telling comment in the reply brief on that exact subject and i'm reading now from the reply brief it page three the sack clearly is compare at price every ty's ing is deceptive because reasonable consumers do not interpret the phrase compare at standing alone to mean m s r p and because consumers do not trust him as r p s dependable indicators of comparative again i guess interpreted your complaint most favorably she's saying and inducement that contributed to my buying the shoes i was when i was getting thirty dollars off what i really wasn't getting thirty dollars off well that's the problem your honor there's no other than her say so there's no there are no facts alleged to support that that's the second or near enough no facts pleaded to show that she wasn't getting thirty dollars off correct in fact  discussed and go immediately to that and then come back to where i was the second theory is the notion that there was something wrong with these prices because they don't accurately reflect the put veiling market price and i want to be that i just read the court i thought there was an allegation that the plaintiffs found something selling for fifty three dollars i may be misremembering that because all these prices have been floating in my head and record eleven months i believe the original purchase was in january and then the comparisons came largely from my law firm and they were in december of that year so they were prevailing  more than the current the end of the model year when you negotiate with the car salesman i have no idea what shoes does that is the same way on a whim and shoes it doesn't matter if it's a lesson on the market for eleven months but it's telling i think that on the subject of well they don't accurately reflect the the market price this is the plaintiff argument isn't well this is what i did and i took the twelve steps and i looked up all of these ar record but as we pointed out in our brief the archive dot org website i counted three thousand five hundred twenty one archive copies of my client's website over a twenty one year period and fourteen thousand copies of macy's website it's also possible to go on newspapers dot com in a matter of seconds call up prices the notion that either a it's exclusively when our knowledge or b i plaintiff can be excused because somehow in our exclusive knowledge and one final point on that issue that i wanted to make before going to the second argument is that the plaintiff has said well d s w you need to verify that there are substantial sales in a substantial number of retailers over the same period in the exact area as we do do a verification process but as i said in the brief retailers exchanging contemporaneous pricing quantity data that are currently at sale that's likely to get you a very disturbing phone call from the any trust division of the justice department that's just not something that really retailers are smart to be doing don't be shocked i recall years ago on nassau street new york watching sowers of postage stamps a rare stamps look at each other's windows and write down the prices that's essentially how we verify these prices your honor that's exactly right going down to the first of the two theories the notion that failing to disclose at these prices at least at the beginning come from m s r pay before they go and  go into our verification process it comes from as we heard in the initial discussion from the f t c pricing guides and there are three fatal flaws in that problem even leaving aside the ekdahl problem we have the plaintiff well i feel that i feel deceived by the fact that it wasn't on the price tag this is the m s r r p and there's no answer to why is that deceptive there are no factual allegations to make it's based on the same misconception this argument is based on the same misconception that we talked about at the outset the notion that these were m s r excuse me m s r p s and nothing else f t p pricing guide specifically private right of action for violates violations the federal trade act and you can't manufacture one under state law by taking a federal statute that there's no private right of action for and say well i'm proceeding under the  position is not although i don't believe these tags are deceptive our position is not that's why this was dismissed and why this should be our firm our position is we're going to ask the question why go further than just i felt deceived why is it deceptive why does it not satisfy the not match the prevailing market price so we can mount a defense of this case we didn't get that at the i think your honor this is a nine b case the whole district court's order was premised on nine b and nine b asked those questions who what where when and how right and and i don't know maybe we're not arguing that the complaint doesn't adequately allege who what where and when i mean it just is your best ho for the same reason i said that we discussed when i first came up she did not believe that this was an emissary and she would not have purchased it had she known it was an emissary p and i don't believe there's anything more that needs to be played with that that's very specific and there are allegations in the complaint i just i mean i'm sorry i think she'd have to plead why i wouldn't have bought the shoes if i if they hadn't said compare that particular number says basically want to traction to the shoes was getting thirty dollars off and certainly when people are looking at something and they think i don't know and then they realize they're getting a big discount price was not the prevailing market price is not an essential element to the claim but there are facts specific factual allegations at paragraph one twenty two where she says in a pretty lawsuit investigation she found that the shoes were selling elsewhere at fifty three dollars that's twelve percent that's not nothing for a bargain shopper that twelve percent is not nothing so you're going to want to point to is the one that talks about her independent investigation correct which happened when which happened after the complaint or right around when the complaint was filed understandably it wasn't at the time of purchase she uses how long afterwards that i believe was about five months after the purchase not eleven months after the purchase but there's a four year statute of limitations and i understand counsel want to say well this this woman could have gone back on to archive websites that's not a reasonable requirement to impose on consumers under california's very broad  advertising laws if you have a four year statute of limitations what's matter with the when issue the applebee's raise why isn't this like somebody saying well i thought it was getting a good deal  my nissan sentra and then five months later i talked to a guy who got one for less i think we're we're again we're missing the essential claim of the m s r piece she's saying i wouldn't have purchased it at all and when somebody is induced by an advertisement to purchase something and then they say i won i found out the truth of the advertisement which was hidden which was not disclosed on the advertisement i would not have purchased it at all that's all she's got a plead it's not it's not a question this i believe this whole prevailing market price is a is a red herring it may be played in the alternative in the complaint you said in my complaint is that she thought she didn't think it was the m s r piece she actually thought it was the wouldn't have been thirty dollars she did but look at paragraph one twenty two i know you're you're saying well that was done five months later but is that now a requirement that a consumer when she purchases something has to go out and do an investigation about i don't understand how it's conclusory for a consumer to say when i saw compare at i didn't think it was m s r p and it turns out it was m s r p what more would you want her to say i didn't think it was  buy a car says and i start p you go out and many of these retailers t j maxx and things they have a second price tag on it not just the price tag of the item that comes from the manufacturer for that they say compare at sixty and that's our p eighty and to be honest with you she starting to submitted and we appreciate very much your interesting