colton haywood had failed to plead the damage element of the m m p i and i c f b respectively because they had failed to allege out of pocket loss but that reasoning contravenes the benefit of the bargain which controls here under if the plaintiff has alleged that the value of the product receipt is less than the value of the product promised that she has sufficiently caused the damages the franchisor or the franchise or the independent franchisees the franchise or caused the damage because massage and b created the expectation in hold and he was that they would be receiving help why control does the franchisor have over the regarding how the services are provided is there anything in the franchise agreement for instance requiring that all franchisees conduct massage sessions the same way i could it could coulda coulda franchisees decide that the one hour massage means a full hour of hands on time could it decide that it's forty five minutes of pants on time suspect and you can help that the website contains all kinds of disclaimers about how services they're in by franchisee actually your honor the website needs the consumer to believe that here she will be receiving a one hour massage and there is no disclaimer except for one which is very difficult to find indicating that the sixty minute massage would be a fifty min massage and addition massage business practice was t these fifty minute massages a sixty minute massages and that was a standardized business practice applied to all of its franchisees well now where did the plaintiffs allege that they relied on the misleading statements on the website  making their purchases and i'm not talking about buying a massage from the size and beauty versus the competitor i am talking about and do seem to buy from the sosh and the period strict prices for a one hour massage for heywood at paragraph one twenty three the complaint says he would went on with such a nice website to read about the one armed subject nor did she read that the sites would actually be less than an remember that the benefit of the bargain will controls and so if the value of the product promised is greater than the value of the product received than the plane to pester mounted the pleading threshold for damage seen to my problem is that the plaintiffs do not seem to ever come to terms with the distinction between the franchise or that they are the misleading service and the franchise see that provided the disappointing service they sued only the franchise service what injury did the franchise or cause or to put it in another way when exactly where the plaintiffs injured when they made the purchase when the massage was delivered when when their expectation went unfilled massage and be created an expectation i don't know what that means i will not know what that when they received a fifteen minute massage which did not fulfill the believe that they will be getting a full one hour massage while the consultation and dressing are separate activities extraneous to the massage that don't count against that hour holton haywood were left with that expectation that expectation went  in one particular place which is alleged in the complaint provides and in numeration of the steps that a customer would take upon entering a massage and parlor and on this page massage envy indicates that the first step is the meet and greet which is described as the consultation the second step is your massage which is described as the sixty minute massage and the third step is the dressing portion so massage and the itself is differentiating between these three phases of the massage the experience and a consumer including hold and he would would infer that she was about to receive a sixty minute massage not a fifteen minute massage plus consultation dressing a consumer and i know in other words would infer that she would receive a sixty minute massage dressing wouldn't come together that our now it's also important to remember your honor that under the benefit of the bargain if a plaintive alleges the difference between the value of the product perceived and the value the product promised that is sufficient to plead damage and here hold in he would have satisfied that sufficient condition so the damaging pretty ends and that's where the district court went wrong in effect you know necessary to show that it was massage and eat the franchise ors business practice to pawn off the fifty minute massages a sixty minute massages and to focus on the district courts air the district court and massage the artifact grafting a necessary condition on to the benefit of the bargain rule that's in congress with the rule there and in effect saying something like to show damage the plaintiff must have suffered out of pocket loss but there's a different rule that trains its focus on out of pocket los are not required to make that allegation the statutes were designed to make it easier on plaintiffs to bring these sorts of claims your honor one decision that might be instruct especially on the district courts here is the kraft case which is from missouri and allow me to just read a line from that case which articulates the principle that controls here an important aspect of the benefit of the bargain the rule that is sometimes defrauded party may recover damages even if the property that he or she received will not as represented equals or exceeds in value the price paid the value or amount of consideration paid by the plane that normally is immaterial with prejudice could the plaintiffs played in good faith for example that they saw in the statements on the website and relied on them in making the purchases or did they plead that the franchisees adopted those mistakes and somehow but to the extent that your honor sees deficiencies in the complaint yes the repeating could cure them in other words the district court dismissed this complaint with prejudice because the district court thought that the out of pocket loss control but out of pocket school control but the out of pocket law school does not control so a dismissal with prejudice doesn't make sense in a world where the benefit of the bargain will controls which is this  amended complaint when you asked exactly that question but a careful review of those paragraphs does not tell us what ms would or what news hold saw and read they just say that they went to the website as we can see from that voluminous pleading that you mentioned there are many many pages taken from the website from various iterations of the website over the years some of them are from two thousand and seven some from two thousand and eleven some from two thousand and twelve some from two thousand and sixteen some from after this lawsuit started they conflate the multi gather and expect you to parse through and try to figure out what these starting right there since they have not identified as they are required to do both under rule nine b and specifically with the requirements of the and m m p i that they saw a statement that was untrue that caused them proximately caused them we're not talking about reliance we are talking about causation which is an element of both and the m m p i and the court did not  with prejudice simply because he applied the out of pocket loss rule the district court concluded that the plaintiffs had not pled a specific untrue statement that their alleged injuries to the specifically to the paragraphs starting at one thirty one for leo holt it only goes to one thirty four all she says is that she access the website to research the prices for a one hour massage but notably she doesn't tell us what she saw when she access that why is that required for a notice pleading even under the heightened standard at nine b and b because they have pled fraud and to have to tell us what the what is then they have to tell us not only who made thank you billy and why it is that one hour massage and then county fifteen minutes late and then you can take a deposition and find out more but at the pleading stage probably when you combine that fact that they bargained with any and that's why they have that's mess necessary but they said that's not necessary under illinois or missouri law to go to the question of benefit of the bargain it's necessary which is a measure of damages it's how we is the measure it's not the actual loss let's look and see what they allege they did lose let's separate it out this way miss hannay would miss heywood did not go to the o'fallon spa and obtain a massage because of what any app allegedly said on his website she went there because her daughter handed her a seventy five dollars gift card if that's pretty is not required i understand previous not required your order but it was not the causation she would have been going to a massage  independently owned and operated spot and redeeming that gift card somewhere she didn't have the option of redeeming it at bloomingdale's or massage lux the local competitor that she talks about in her complaint she had seventy five dollars in order to get services or products she could have or deem them for anything so it is you can't get to the but for and but for is required under it it's not but for massage and the statement that she walked into that door it's but for her daughter handing her that massage so then on top of that but here when you look at the cases particularly under the m m p essay that council has cited that talk about benefit of the bargain and your honor you mention manufacturers and you mentioned wholesalers in the automobile industry what's notable about the your honor is that in each of those upstream circumstances there was first a sale by the manufacturer for instance to the distributor or the retailer in the wholesaler card case there was a sale by the wholesaler to the retail the dealer decided the franchising didn't sell anything to disfranchise it and there's no that's again british seann what is appropriate they argue at the pleadings stage it does but the i'm talking about the absence of an allegation in the complete when you look at these cases it only has to make that allegation to survive a motion to dismiss even under the heightened pleading standards this is not having to do with the heightened pleading standard you mean we know what the misrepresentation was in our massage that turns out to be fifteen minutes that's the what and we have the timing we have  we have everything we need under nine b as required by illinois and missouri law you're asking for far more than the statutory claim requires your honor if i can come back for one more purchase chain when can you go to a third party who isn't the person who received the direct fund with who was not negotiating the purchase and your honor mentioned manufacturers and you mention wholesalers there's a very big difference here between each franchise or who does not sell the size who only receives a royalty so in this instance what plaintiffs have not pled but which was a critical factor in the cases they rely upon for arguing that you can go in connection with goes beyond the purchase is in each of those instances there was an allegation that the wholesaler or the manufacturer itself received some additional profit as a consequence of the challenged activity so in other words had plaintiffs played here that because the plaintiffs only received a fifteen minute massage n e f itself made more money they might get themselves into the position of those wholesalers and of those manufacturers but here there is no allegation of profits to any app as a result of this challenge conduct that all you're focusing on the wrong thing the statute focuses on deceptive marketing i understand that you're and but and you're the marketer your these state statutory consumer fraud claims focus on deceptive marketing practices and your rule if the rule that you're proposing would would eliminate liability for a huge sw of of the retail sector that operates using this model your honor to go back for a moment to the misrepresentation issue that i said i would come back to and this is extremely important because  decision under the bowker decision under some more recent seven circuit decision since we filed our opposition papers if someone is alleging that there is a deceptive statement you have to look at the totality of circumstances so let's look at the totality of circumstances or to never face any liability for deceptive advertising because the purchases are made at a local franchise it no your honor let me give you an analogy to try to put that in context if i mcdonald's and i'm a franchise or and i put out an ad that says our french fries cure cancer and somebody with cancer walks into the franchise locations and vice franchise price french fries and it shows that they don't approve of cancer because it's me very well and the person who went in and bought those fries had seen that ad before going in and purchasing that was the reason they walked into existence they may well have a claim against mcdonald's but those are facts here neither of these plaintiffs pled that they saw massage and they didn't get that but your honor the flaw in the complaint is they could very easily said and this is the page that she saw they could at least even say i don't need to do that survive a motion to dismiss you can ask that in a deposition bogor case the more recent tolling decision that just came out in december of twenty seventeen all say that when you're talking about except a statement you have to look at everything you have to look at everything that was known or could have been know by the consumer here she received a gift card notification and the gift card notification told her that it was good for seventy five dollars it didn't say anything about the temporal duration of any service she could get except that any session she obtained would include time for consultation dressing when she went on that web site that we've talked about again not knowing what she saw she could have seen if she wanted to know what was going to happen either side a statement that explicitly told her it's a one hour massage includes fifty minutes of hands on service and ten minutes of consultation service it was right there your honor so to take that step that we're going to allow her to not identify what she did ignore what was there for her to see and that would have fully informed her runs afoul of seventh circuit rule is now when we sit down and we talk about the what did it take to reach that qualifier to take it to moving through two different links that's off that and that sadness and whether that's deceptive or not well why don't we find out if she actually or we should have found out from her complaint she actually saw that one of the other things that's what if that's what discovery is but what's one of the other things that plaintive i'm sorry that the appellant's council talked about me stepped up here with sixty minutes that they walked in with the expectation of sixty minutes i just want to make certain that it's clear to the panel the massage would be franchising website and the signage as you'll see if you scroll through every one of those pages of the complaint never used the word never used the phrase sixty minutes until after this lawsuit started long after they got their services and then that sixty minutes was immediately explained that it included fifteen minutes of hands on service and ten minutes of consultation addressing plaintive tries to take this notion that they expected sixty minutes from nothing that was said by massage and franchising but we have to also step back one second and say in what way did they sustain u economic loss a loss that is peculiarity in nature they never plead that anyone or that is a massive defect in their complaint they don't tell any of us how much either one of these plaintiffs spent whether it's through the redemption of a gift card or whether through the actual provision of cash for their services we could try to infer from the complaint that they probably paid fifty dollars because that was the advertised introductory price but even if they paid fifty dollars for it they had no last opportunity they could go out in the market based on their own allegations and get a fifteen minute service for less than that and in fact miss heywood went back and your honor's allow me to correct a few misrepresentations that were made first there's only one disclosure on the saudis entire website that indicates a sixteen aside is actually a few minutes on but that is slow does not take only two and possible to find a line the steps in are complete in a briefing i haven't been able to memorize them it would take too long to go through them but one of the steps involved clicking on a camouflaged the link which means clicking on text that is the point that was just made regarding a windfall remember that under the benefit of the bargain rule damage can be pleaded in the form of the difference between the value of the product promised in the value of the product receipt and if there is a difference they are the pla defendant though argued that the plane to pay no claim because the home itself was worth eight hundred dollars but the illinois supreme court rejected that argument their illinois supreme court said that the plaintiff was intitled to the benefit of his bargain which is the difference between the value of the promised land and the value of the land as represented and think it's consideration was immaterial to the now says so your honor the windfall argument doesn't fly here under the benefit of the bargain rule all that matters is that alleged difference between the value the product promised in the value the product received complaints of survival motions to dismiss or the differences between those two values were much smaller much less ascertainable much less quantifiable than the difference