firstly the court misconstrued the choice of law clause within the end user legal agreement which is included and must be agreed to by the consumers in order to use their devices and secondly the court misconstrued consumer protection laws specifically new york g p l section three forty nine in disallowing plaintiffs to  amend their case after determining that new york law applied in finding that consumers have no right to expect an ad free experience in a product they purchased which doesn't disclose that advertisements will be required to be viewed in order to use the product so to begin with the choice of law clause how is the clause here different from the clause in crock our decision and crock the contract in order to decide whether the choice of law clause applies to the claims and doing so here we have a choice of law clause within a contract which purports to a clause the clawson kroc read this mortgage shall be governed find each true you know portents with the laws of massachusetts and if you if you sub out california for massachusetts and agreement for mortgage it's it's virtually identical to the clause here i agree entirely your honor and i think it's worth noting also that in section noyon not only is the choice of law clause which provides for california law as broad as it is in crock but we also have an explicit clause which purports to govern essentially every all encompassing aspect of this transaction including all theories of liability  certainly the claims in this case whatever their merit are a theory of liability you referred to section nine of the contract as a choice of law cla no your honor the choice of law clauses in section twelve ok but you refer to section nine to support your argument that on the choice of law and you that's why you say that it should be only california choice of what do i read your argument right that is correct your honor but if that if that's true right i don't understand how that's consistent with the final paragraph of clause nine or section on line which pacifically says some jurisdictions do not allow the exclusion of limitation were were a limitation of the incident were consequential damages so the above limitation were exclusion may not apply to you plainly the cla contemplates that the laws of various jurisdictions not just one will apply well your honor magnus and mos the federal magnets mos warranty act requires that language  because of course while the parties might agree to a certain choice of law congress might determine the application of some other law which would preempt this agreement but there is nothing that would preempt disagreement we believe that the ruling and holding of croc versus let's say which requires the inquiry about whether the contract itself all of its terms or quote sufficiently broad to encompass the claims which are stated and brought within the choice of law clause so we think that section twelve is clear enough but just so there's no doubt that this contract encompasses what the complaints are which are being brought in this case we think section nine couldn't possibly make it more clear all causes of action all theories of liability are governed by this contract on the second issue what is the deceptive conduct here well the deceptive conduct is that the defendant had sold the slingbox units without disclosing in any way that it would one day require consumers to view advertising unsolicited unwanted advertising in order to be able to use them and the plaintiffs have not only alleged that the failure to disclose the oswego case it's quite clear that deception is not only what we would term deception under the common law it need not be spoken there needn't be no science or it might be established by the and everywhere but your honor i think the big distinction is this is over a device that they have sold you every device now or potentially every device thanks to the internet will now be connected to the internet although i didn't own the product when we submitted these briefs i now have amazon alexa in my kitchen which i can ask what the weather is i purchased it  just like these consumers own a slingbox if it told me alexa what's the weather well sunny out and you should buy some suntan lotion on amazon i think i would not be getting the benefit of my bargain might be but promise that there will be no ads but amazon doesn't say that the question is what would a reasonable consumer believe when they purchase the alexa or the slingbox or your television where this microphone which one day might be connected t internet most consumers contrary to what the district court held believe that when they buy products they own it and they have the right to use it without additional interference without paying additional money  for example you tube will allow you to remove commercials from their free service for payment of a few dollars a month doesn't be agreement here contemplate software changes and essentially give to slingbox the ability to determine what the nature of the software changes is isn't that enough to say whatever one individual's expectations might be they're not protected in this agreement we don't believe so your honor because that would change the very nature of what is being sold that would not only be breach of the duty of good faith and fair dealing by taking away what has been contracted for and what the benefit of the bargain is but also would go against the very essence of this contract we're selling you a slingbox for you to use an slang your own products your own media wherever you are in the world by adding this additional very material caveat to that late in the game after you have made your bargain years after you've made your  bargain is a material deviation from what has been promised and what the circumstances is there anything in the contract refers to advertising there is not your own it's listen if there's nothing in the agreement how can you say that the essence of the agreement was an ad free environment yes and so of the agreement your honor is your ability to use the slingbox and this interferes with the use to the extent that we have  alleged the plaintiffs of alleged that they've either stopped using it have purchased other or computing services at monetary cost to them in order to be able to enjoy their own programming which they've already spent several hundreds of dollars and paid to sling media in order to have the right to do so it goes to the essence of your ability to use this product you might be interested in looking at our proposed amended complaint as actual photographs of the advertisements and i think the question that the lower court should have asked is whether it was plausible not whether it was likely but whether it was plausible that a purchases it does your honor and what paragraph in the proposed amended complaint it goes into quite some detail about the history of slang about the development of the technology to deliver commercials over the internet about slings patent filings and applications and grants to be able to get the patents to be able to do that about their selling or participating in advertising conventions telling the advertising community that they had the ability to deliver these advertisements none of this was disclosed to consumers in fact to the day of the filing of this complaint slings website all their marketing materials had nothing about advertising and even all the photographs of people using and enjoying their slingbox had none of the pictures of these ads which we claim to be so abusive so we believe that we should have been able to file the amended complaint  even if the court was correct about the initial complaint and those are in paragraphs twenty eight to thirty six you're on the solve reserve the balance my time thank you good morning richard patch for sling media in the district court was absolutely correct to dismiss this case and to reject the proposed amendments is futile because the plane just appellate have never identified a a destructive conduct on behalf of slaying nor more importantly have they done to fight any cognize who injury under general business law section three forty nine they they're making in that case that they tried to look to a form selection clause which in fact was very broad it included any kind of claims to interpret the provision of the of the choice of law provision in th circuit said those have different language and there's no reason to think that the scope of one thing is going to dictate the scope of the other and then both chronic and finance one say you look to the language of the choice of law for you don't look elsewhere for this particular interpretation so i think that it's clear that whether it's this agreement or this mortgage this is limited to contract lames you say there's there's no  injury but if you are getting a product that subjects shoot at is that does that not make it less valuable at least in to many consumers well first let's separate the the product from the software of course you know in the product they don't own the software sling owns the software they have a very limited license to utilize that software in the first paragraph of the license agreements nothing makes it expert to express my i was just trying to address the question of injury if you are getting a product and suddenly you're being subjected to unwanted ads does that not lessen the value of the product and would that not be you can't take that position because what you've done in that case is taking that deception and turned it both into the act and the injury although you're not asking about the sweater it's the sept i was just trying to address whether there there is an injury i mean is it indeed plausible that a box that subjects me to add just less valuable than one that does not the the ads last for a few seconds with one stroke my not be much of an injury but it's a little bit of an injury it's aims it's frustrating is not actionable and at best it's frustrating and two cases of hell in the appellate division that frustration is not god nies of under section three forty nine and that's all they've ever alleged here frustrated and and what they allege the only paragraph in the proposed complaint that suggests where the injury comes from here is fair after thirty five and thirty six and it says if you had told us we would not have purchased or we would have tried to pay less money those are not actionable under section three forty nine you have to take the injury namely in this case advertising and you have to say how advertising recognized anywhere and we are constantly as you said just earlier subjected advertisement remember this is a media device and what makes it completely different from the refrigerator advertisement or the other things is that when you buy this device you're buying in to a atmosphere in an environment that is replete with advertisements it's just as likely that when they opened their their programming that the programming was showing as retirement as opposed to something showing advertising so what we need here though in every case they rely upon there is something affirmatively done by the by the seller one hundred percent one total zero two year warranty which gave the person a reasonable expectation that they that the product was clear and clean here they and not identify anything that that something ever did that would allow reasonable consumer buying of media product to expect an ad free experience in perpetuity this is years and years and years as this this software has modified over time and the way you would do that i suggest to is it precisely the way sling did it here you're going to sell a product it's going to need software and you're going to get licenses to do the software what you would say is two things one is we reserve all the rights that we don't express the grant to you we say that it could be modified it upgraded and changed and then we say we specifically do not warrant that this product is going to meet any individual customers and expectations when a reasonable and sooner or purchases a device like this it's a piece of equipment is there a reasonable expectation of an ad free product line and when he say that and you're going to say no but why because every look at look at every other software that people encounter software particular environment i don't think there is any reason why the why isn't your adversary's argument is that this is more like their refrigerators to come than then the internet and that what his clients purchased was the ability to sling ear the content that they were watching they were they were not asking and that there might be some time warner ads in that content but they weren't asking to see additional advertising inserted by your client ended they were shocked and offended when they saw that advertising in that in fact you're now marketing a product or you're fine it's marketing a product where people are paying a premium for that ad free environment that they thought was part of the original bargain the  injury has to be tangible it can't be frustration it can't be two seconds worth of an advertiser and you can't buy a media product without some expectation of advertisement if you're going to be the one that colors that activity you have to do it yourself you can't imply it or impose it on a media company without even ever mentioning it remember this is a case where staying does not promote does not warrant does not sell doesn't speak to the issue that advertisement or lack of advertisement was never mentioned in any of the documents it does not form part of any of this transaction if they the consumer had  expectation of ad free environment it was up to them to raise it and asked for that color on the activity rather than read a license agreement that says we reserve all rights and we specifically don't warrant th it's going to meet your every customer's expectations reading that they say well if i have this secret expectation but remember again injuries the key here i think at the end of the day two seconds or three seconds worth of vice you can send it to any device you can send as much as you want you can do it at any time of day whether there was injury or not it would have to be a prerequisite for deceptive conduct there yes yes and as i started saying there's no deceptive karnak here the fact that we were looking at r and d as a part of doing natural development of the software and exploring different uses expansions and functions for that software is a natural thing that wasn't it happened in two thousand and nine two thousand and eleven this advertising wasn't starting to five years later there was nothing to it plan or expectation that we need to disclose but again i think if we were going to disclose it the way we would your honour's i'll try and be very brief but i think the most important point i have to make is that we have heard lots of examples about media but slang is not a media company it's a hardware company just like you buy a television just like you have combination with the deceptive conduct that the deceptive conduct is the same as would be if your television started having advertisements the real question i believe i can envision has advertisements all the time well your honor i think really what you mean is i is uter you're media has advertisements you buy a computer piece of hardware there are all sorts of advertisements loaded onto it what you're suggesting is that companies need to issue a warranty that that there are no ads there will be no ads judge i think if you wanted to use your computer without using that junk software  that they load onto your computer it's still usable but as you could see from the photographs that we've attached to the proposed amended complaint of this product can no longer be used at as it was intended as a reasonable consumer would can't multitask but the ability to do the is the essence of what is promised in the software is still available to you can watch your t v programming on your computer at the point of sed say no and say that th eir expectations have been defeated and they have actually spent money in order to avoid these ads some of the examples that my colleague gave are interesting he talks about spotify a believe them u two and those are free services which you can pay money for in addition to the company to get rid of the ads which shows as the citations do that your attention has value g b l three forty nine doesn't require a prevented from putting up i don't think so your honor i don't think that that would be implicated by this case but i think that if your television why not because that's a service and not a product and they can change the service on a month to month basis this company has actually sold a device for several hundred dollars which they by which they bargained that you would be able to use it in the manner described in the marketing materials which we have described in the complaint and proposed amended complaint which you can no longer use in that manner they have completely changed it in a way which that is true of virtually every device  not familiar with the details but but that to me sounds quite quite improper i think that when you buy when you buy a product it's your product that's a reasonable assumption certainly  the district court believe that a reasonable consumer when marketing is silent about whether or not you should expect dads that you have to be willing to accept it as a consumer and as an attorney i believe that that's wrong and the court district court with respect got that question long consumers have the right to expect an ad free experience unless disclosed otherwise we buy lots of electric domestic products from dishwashers machines to televisions and those are all being connected to the internet if the defendant can do what it does then we can expect to receive advertisements through all of those devices in the future i think that  this is of the first chance for a quirk to stand to thwart that and to say that that's not necessarily ok it's plausibly at least not ok and that the defendant should be