and defendants unless the court directs me otherwise on the merits the crack question of fact in this case is how a reasonable consumer perceived one hundred percent  parmesan parmesan cheese labeling it just a court decided this question of fact as a matter of law but a question of fact it should be resolved on the pleadings only at the outer boundary you resolve the fact questions on the only at the point right jerry can resolve the question of fact in only one way and given plaintiff's allegations in this case this is not an outer boundaries matter of law resolved in the pleadings case for instance plaintiffs allege and the allegations must be taken as true at this stage that instead of a responses the vast majority of purchasers of these products when surveyed reported that eighty five to nine thousand and eighty five to ninety five percent of them reported it they read the labeling one hundred percent parmesan cheese to mean that the products were entirely cheese we also alleged went to linguists and linguists reported it one hundred percent representation  consumers can know what ingredients are that it that's why they're there and to make sure the ingredients are accurate here actually we allege in addition that the ingredients list contradicts the fact label representations the fundamental error of the district court that is not the law in any state the law in every state which the court is obligated to follow in a diversity action is that if different label is deceptive even if it could dismiss on the pleadings the case when the back label contradicts the front label representations so that the district court was fundamentally wrong that there are some ambiguity rule if the front label doesn't just one hundred percent  council i have a question for you what about the fact that the piece of context about this being cheese that's kept at room temperature on a shelf and that makes it different and one hundred percent arabic coffee right  kind of cheese that would be cured well enough to last at room temperature you know for the forseeable future do you think reasonable consumers would expect that there was some very high grade of cheese assume that all cheese all parmesan cheese was capable of staying at room temperature the i think that's a very narrow class of this cheese right i don't know i think you're raising a question a fact that needs to be resolved based on evidence just because they refrigerate the cheese bees that they think that if they don't refrigerated it must have additives in it and that's what the district courts but that's it that's a question of fact you need to go you need to collect evidence what do co correct that your focus here is really on the one hundred percent claim on the final able yes and do you think the removal of one hundred percent would you are the problem yes if state law imposes some requirements in addition to federal law state federal law both prohibit deceptive advertising and there is and call it one hundred percent great cheese we've alleged that's deceptive survey shows that's deceptive linguists have looked at the phrase say that is deceptive because it it tells consumers it's pure che not i mean it's the one hundred percent doesn't want to fight great that would be very impossible everyone knows the cans look different i mean and some of the cans one hundred percent graded together and small and then product you're buying is entirely cheese without additives and there's other things in the labels to you that i think are important they should chunks some of them show chunks of cheese you know as if this is what you're getting you're getting a chunk of cheese it's created one of crafts even says one hundred percent cheese no fillers so there's no no label is identical but they all indicate you're buying cheap buying entirely cheese a consumer might consider when interpreted that phrase that's true and that's because that is it then for a for the jury when we get there what facts shape the consumers perception beyond just the words very likely they say consumers interpret this phrase by referencing cheese that you buy in a farmer's market and they don't know that our cheese has that it is where is the farmer's market cheese or that you buy from real tailor trademark law or trade dress law we look at reasonable consumers and buyers in the whole context and part of the context is retail buying of relatively low price to have offered some support for the notion that a lot of consumers will make these kinds of choices in a matter of a few seconds right that's correct and that's part of the relevant context here absolutely how did how did consumers buy this product they're walking down the aisle way they're going to buy this edition to many other products and when advertisers know this i mean abbott these bad guys are mr do you think people pay a low price for cheese would expect purity well i don't know i mean that's a relative term but people that buy this think it's a lower price for cheese compared to other cheese i think the price context comes in birth if you compare what consumers do what they buy a relatively low value product whether they're paying three dollars for cheese or five dollars as compared to for instance buying a house buying a car time on it and the point is the law doesn't require them to judge hamilton pointed out the law does not require them to and at this stage we still have to prove our case but at this day each week it beyond the  what reasonable consumers actually do because that's how a reasonable superstar fine by what they actually do in the real world council can i ask you a question about original jurisdiction and why are you unable to political states where they sell but we just haven't had a chance to get that yet that's something we have to get through discovery it's not it's not you know publicly available on the internet who buys what a public spot they have the information good morning everyone michael brody for the craft kinds company i will address the merits issues on behalf of all defendants mr collins will then address the chinese to the appeal issue on behalf of certain and may have please the court this case is about the labeling of a product not the labeling of an ingredient grated parmesan cheese and i use those three words grated parmesan cheese is a product it's made of separate ingredients that are combined in a process that takes place in a factory just as frozen yogurt is different than yogurt and cornflakes are different than corn grated parmesan cheese is a different product than parmesan cheese and there are multiple cheese products from a block of cheese that you might see in the gor a section of the grocery store sliced cheese shredded cheese crumbled cheese and grated cheese they all have different labels different ingredients and consumers view them differently depending on the product the entire label and other points of context it's not accurate to treat grated parmesan cheese as interchangeable with cheese which is what the plaintiffs ask this port to do when kraft and the other defendants sell grated parmesan cheese what are they selling well the f d a has defined grated parmesan cheese in its standard of identity and it indicates that grated parmesan cheese can have anti caking agents and can have say sounds a little bit orwellian but the what happens if somebody's got a lot of ingenious food engineers in this country and around the world what if somebody comes up with a way to or maybe craft comes up with a way distinguish that product from the current products other than by saying one hundred percent well that they would distinguish it in in in the ingredients lately or st the standard of identity when really well hardly anybody is going to read the review label but if they're trying to distinguish on the front label well i guess i can't speak to what kind of adverse events would be permissible for a different kind of product you know they may put on the front label you know compare our label to craft ours is better you know i can't speak that your honor but i i do know the f d a has defined the product that we sell to include the things that we have  a you would agree has not approved the one hundred percent label or the label as well i would disagree with that your honor as to craft in statements in the federal register that we quote in connection with the preemption and sa harbor argument the f d a published a statement saying that the product will be called one hundred percent grated parmesan cheese was added out in the experiment with the the shorter hearing period it relates to the issue of the safe harbor and preemption it's not a factual issue at all that the f d a has said the product will bear the name one hundred percent grated parmesan cheese and i don't think we need to delve into why the f d a meant that term perceptions in trademark and trade dress law for example that are somewhat more familiar to federal courts especially with consumer products we don't assume that consumers will carefully scrutinize all available information when they're looking at two confusingly similar labels next to each other and we recognize that consumers make fast decisions we protect them  competitors from initial confusion and from deliberate attempts to take advantage of limited attention into to using ambiguity i don't have trouble understanding why we shouldn't take a very similar approach or at least permit a similar approach under state consumer protection laws rather than assume that consumers are going to approach these labels with the care that a federal judge approaches with say interpret in a new statute there are a lot of things i guess i'd like to say about our st one doesn't need to closely scrutinized anything here in order to determine exactly what's in the product you know here's the can  look at the front you turn the label it's a it's a quarter turn of the can so it doesn't require scrutiny nd common sense tells us that a plastic canister of grated cheese sold in the same aisle with the dried pasta in the tomato sauce is different than the cheese that sold in the other side of the store that's kept under refrigeration and that principle has motivated all the cases that address context the chen versus dunkin donuts case which is the case about what it means to be steak dunkin donuts called their product steak even though it was a ground meat product with additives the st circuit i think was the st nd circuit said no problem because in the context consumers know that that it sandwich is different than what you were to get at a fancy steak restaurant and and a last point about this before i get to the law i guess is the the plaintiffs in this case have alleged they read the label  this hearst talked about this issue about whether there's too much cellulose in the product or not and that's an issue that the judge feinerman has not resolved and if we have to get to that we'll get to that but in their allegations about that claim the same allege that they looked at the package read the ingredients list and were deceived by this statement that when when the defendant said cellulose was added to prevent taking when in fact they now claim it was present included for a different purpose so these very plaintiffs  have said notwithstanding that the short time frame that's involved in this purchase decision that they read the label so so i think that's the the the argument about about that bill let me address the law that the plaintiffs argument here is that the trial court decided a fact question i disagree completely st the plaintiffs don't focus on even the entire front of the label they focus on one hundred percent cheese words taking two words out of four but what the trial court said here is in the context of the product context provided by the entire label which the law permits consideration and the context in which people buy the product the store experience there was no ambiguity that the the only way you create an ambiguity is to ignore the entire context and the states whose laws are at issue here have directed courts to consider that is kraft and the other defendants consider contend there is nothing ambiguous about saying one hundred percent grated parmesan cheese because grated parmesan cheese is a thing and this canister contains nothing but what the f d a tells us ambiguous then he said we look to the entire label and the context provided by the entire label is the crucial question to use his words and in his view and and this is the view we defend here on appeal the entire label cannot be read to say there's nothing in this product other than parmesan cheese whatever that is because we know that the label says clearly it contains cellulose to prevent and potassium us that puts us in the the cases that we cite you know the big chair a case talked about diets and the plaintive support of their allegation with customer surveys that said diet means help you lose weight the court said no look at the entire label ron workman versus plum another good example the the front label described all four food groups the plaintiff said that's misleading because they're not present in the quantities that that would suggest the court said no distinguishing plaintiff's cases no there was no affirmative represent misrepresentation all those products are present and the ambiguity is resolved by the entire label the chen vs dunkin donuts case is another example that the  arise relies on are cases in which the accused statement in this case the two words they picked off the front label would be clearly misleading in in the beard's all case this court referred to the gerber cases dealing with clearly misleading statements that the district court was that it's one in which the misleading interpretation is an unavoidable interpretation  that though why or why and why isn't the standard simply a significant proportion of reasonable consumers will be misled but the question i think judge hamilton was misled by what  this one by the label that your clients of carefully studied designed and marketed well the district court found that when the entire label is read not just the two words th entire label that it's it's not misleading and it would be unreasonable for a consumer to look at a product that says it contains cellulose so what have what would happen if if if a survey of consumer shows that say fifty percent problem well i think we'd have a big delbert fight about that survey judge i don't want to fight the hypothetical to a little premature for a delbert fight here right and it's and the the understanding of the language on this label i've got to say  from whether they're experts with their surveys certainly makes sense to meet as a consumer and it seemed to make sense to the st circuit judges who who wrote the dumont opinions with similar sorts of language well that they did not case i think is is a a really interesting case judge there the product was advertised on the front as hazelnut cream coffee it had no hazelnuts in it thought it was not deceptive at all these were in essence factual disagreements as the majority wrote there saying what the what the jury figure out how these labels are actually understood when we're talking about products selling huge volumes across a gigantic nation the stakes for designing those labels are huge and companies like craft than heinz don't shoot from the hip on  they study them carefully right and and your honor the law endorsers that by permitting companies like the defendants in this case to defend their products based on the entirety of their statements over a case from this court that davis vs g n case the freeman case all cases deal with ambiguity of a statement and the court finds that in light of the entire representation the one statement taken out of context is not  context and they're going to dismiss as a matter of law so of my if we have the fifty percent of consumers you'd say all the federal judges and state court judges around the country not to say those fifty percent of consumers are unreasonable  and are fair game you know i'm not sure i would say that your honor if if the survey said that that the consumers were read the front label and read the back label and based on the entire context were confused that might be it a different situation i'm trying to focus on what's what's going here and also your honor it's it's hard to say that this case fits into like the do mind case where her home her in this case they all hooked up the wrong way of all right we have no idea there's a one paragraph allegation that refers to what the survey says we don't know what the survey said i suspect if you asked most americans in what was in cheese they wouldn't get very close to that one either but but here we know that what kraft described the product is is not  advised that this product will bear the name one hundred percent grated parmesan cheese the standard of identity describes this product as grated parmesan cheese more case the more recent trader joe's case the flowers the court found the claim preempted it said it's it is one hundred percent new kahaani even if the new company has something in it other than we need to flowers the same is true here this is if a one hundred percent means anything  to change the meaning of this product and and we dispute that but if it does what kraft sold here was one hundred percent right of terms on cheese so the claim is preempted by the power of the nutrition labeling education act and i refer to the more case it's also not a violation of state law all of the state laws here say that compliance with state or federal regulations is a safe harbor from liability  or i think it would be a defense for all the defendants in the safe harbor cases the the things that courts have relied on are our pronouncements of regulators not pronounced ones of regulators in cases involving the very same party if a regulation or a statement says it's the position of the f d a in this case that the following is permitted that's a safe harbor for other defendants as well they sold the same product it was subject to the same regulations they called the same act no you're right i've seen some of these cases brought as individual cases i've seen some of them brought a state only claims like a class of illinois consumers or class california consumers that sort of thing  so i don't think has a not necessarily congress obviously has decided to move a lot of litigation involving interstate commerce into the federal courts and that's why we're here but i don't think it would have to be that way the plaintiff can  they may have a different opinion but they could choose otherwise not and why not because the the standard of identity and the f d a regulations indicate what should go on the label it doesn't say anything about claim that issue arose in the melendez cases i'm remembering correctly and the court found the claimed it did because the claim was not asserted under how the f d a defines the term but i think it allows room that if the party went beyond what the public's target and and i'm here to address the timeliness of the notice of appeal with respect to the district court's nov st two thousand and eighteen dismissal with prejudice two of the five consolidated amended complaints one filed against public switches document to twenty six dollars in the district court record of one filed against it go in target which is document to twenty eight dollars and district court records under twenty eight u s c twenty one has been an appellate rule for a party two discrete and celebrated complaints one against publics and the one against target it go and the only thing left to do was to enter to separate judgement the order dismissed due to a medic consolidated complaints in their entirety all of the claims between the plaintiffs and the defendants named and those two stand one complaints were dismissed for failure to state a claim and i'm going in in terms of the the logic of the  and under five hundred dollars yes yes and under the dismissal of one of those complaints does not foreclose appeal where those complaints are consolidated for the purposes of pretrial only  so for that reason two of those complaints being dismissed with prejudice that appeal would be permissible you would be required to wait for all five complaints to be resolved terms of the separate document requirement this court because recognize that a minute order may satisfy the separate document requirement here the minute order stated that publix and target echo's motions to dismiss were granted and terminated public center gets as party defendants i note that in the runnion case decided by this court the phrase case terminated in a docket entry was sufficient under rule fifty eight to constitute a separate judgment  it terms of waiver i just want to touch briefly on that if you find that the minute order was in fact a separate document for purposes or if the a there is no waiver issue it would be a jurisdiction al issue under twenty one dollars and the court would not be able to hear the appeal if you decide that the minute order did not qualify as a separate judgment we do not believe there was any waiver at the earliest and since the court knew that there was a timeliness problem it was raised in plaintiff's own docketing statement it was raised when the court ordered us to address some of the jurisdictional issues we cited the two thousand one hundred and seven issue as well as one hundred and fifty a problem and in fact the court's own order setting forth a briefing schedule asked us to address the timeliness issue of this is on mike walker and vergara where after briefing the court was finally alerted to the timeliness issue several months later  a thank you thank you on it there's a critical critical misunderstanding here the f d a standard of identity is optional which is exactly why the one hundred percent labeling is important as a signal that unlike some grated cheese which does not have these three have these additives it here they signal it their cheese is the same as grated cheese it's not have additives and that's false nd another misconception is that the plaintiffs in this case did not read the back of the label they did not that is not what they allege they read the front of the label and on the plea and a reasonable consumer when on the front label makes an affirmative misrepresentation and here that's what we have they say one hundred percent she's that's false a reasonable consumer is not required to investigate that further they have a right to reside on advertisers representations and they don't have to flip to the back and on the pleadings the case is not dismissed we go so that we can then develop the entire context with evidence and determine what a reasonable consumer would believe based on evidence three there is state law does not follow this ambiguity rule that the district court and defendants keep talking about state law is that if there's a representation on the front that is contradicted on the back you go to the evidence the case is that the opposing counsel talked about where the court looks at the entire label is where the misrepresentation and the qualification are right next to each other they're both on the front label they're both on the front label and that is not this  case on briefly on preemption on the district court didn't decide that in the st instance and i think this court's not decided that in the st instance the district court didn't rule on that at all and if nothing else the facts of what this letter from crass attorneys mean or doesn't mean is a factual dispute that is relevant to preemption and that should be determined st by the district court and on and actually on preemption one case i would like the court to look at if you go to preemption is levy can address that is a st circuit court of appeal case where the court explained that the that the  the federal regulation has to be specific there it had to do with on disclosed g m o ingredients that the federal regulations said you don't have to disclose film but that doesn't mean that you can affirmatively have a representation on the front of the label which represents that the ingredients are not there so false advertising is different from a non disclosure requirement if you're going to have preemption you need to have a specific federal regulation on whether this label is false or deceptive and we don't have that in this case on these timely appeal  on the time to appeal in this case begin to rant to run in on our guest of twenty one thousand and here's why the twenty eight thousand motion to dismiss decision with not a final decision given a practical not a technical instruction so here st the motion to dismiss was not a final decision because it was not specifically with prejudiced spite of what defendant say it was not specifically with prejudice it was  t if you look at it you look at the situation practically what was the court doing the court was overseeing an m d a little geisha and managing all these cases he did not step back and say ok i'm done with publix and target  continued to manage them along with other cases he said a briefing schedule on a motion for leave to amend he then of ruled on the lease to amend and after ruling on the leave to amend in the summer of two thousand and nineteen that's when he stepped back and said ok i'm done with these cases now what do i do about entering judgement that and he directed all the parties to say what do i do about entering judgment and all the parties including publics and target ask decision you look at what the court you do look at that in a practical way that's what the one case sets you look at that in a practical way and the court continued to manage and you also look at what the court did no judgment was entered separately by the clerk were there any distinctions between one hundred percent claims against target and publics in the one hundred percent claims against the other defendants no i mean i don't on the on one hundred percent know and i'm almost out of time but i think that the waiver of one hundred and fifty dave rule is important because publics and target told the court to enter judgment in a particular way in two thousand and nineteen the court did exactly that they never said old don't enter judgment in twenty one thousand because judgement was already entered months earlier they only came up with that argument later they've waived they've waived the one hundred and fifty