erred in just about every way one could air in in the handling of this case from applying the incorrect procedural standard to the substantive motions in the case to misapplying the substantive law governing the causes of action in the case and to simply ignoring evidence admissible evidence that was inconvenient to the conclusions that she reached and frankly it was inexplicable this case was filed congress is not a court it's a senate report is not sitting to decide what's a violation of existing law it's sitting to decide what the law should be and as you say then they made they introduced a new law as a result of this your honor respectfully i would note that this is evidence not and let me make my point specifically under eight zero three eight the senate report is admissible as evidence the standard is does the conduct have a tendency to deceive that's exactly what the senate commerce committee concluded it said it that's the standard under which that's a standard under connecticut law as it is under connecticut law which is part of why we're here right because the only part of the connecticut law that you're appealing is the retention program i thought you were not entire process here was one designed to deceive consumers our plaintiffs certainly what exactly to see them that they were signing up for a program called i thought they were signing up for a program called grateful they had no idea they were doing that that's the very nature of the program why would they not have any idea when the screenshot of what they are saying invites them to apply for great fun and tells them that there is a membership fee you're out of with all due respect to that screenshot what you're looking at which has been enlarged to essentially fit on an entire page that is not the manner in which that particular screenshot is somebody looking at autozone that they could be looking at on a phone or on a computer screen which does not look like that because it's a pop up screen it doesn't pop up that way and that's exactly is the part of the point you have something in the record that shows how it looks on some type of computer screen they haven't said that it it looks the way that they put it in on a person's computer logic only common sense dictates that if you have to fill a note that barely barely and remember we're dealing with what we're dealing with and i personally i refer to this is the dr frankenstein school of consumer fraud scheme because if you take all of the learnings of marketing professionals  psychologists into still them into a way to try to come up with a scheme to defraud consumers while creating a pattern of of acceptance by the consumer to the scheme this is it and that's what our experts at by the way who was just disregarded by the district court there wasn't a dobber hearing there wasn't a finding that the opinions of the expert were not scientifically reliable or relevant or anything just disregard the experts said that the scheme was intended designed perfectly to take advantage of known consumer tendencies in fact we had evidence that what every ad on television is designed to do it's intended to appeal to get people to actually purchase the thing they're purchasing this was designed to evade people realizing that they were purchasing what they ended up being charged for the evidence in the record and again this is evidence says the look and feel of the pop up window was designed to make it seem like what you were doing was dealing still with the online retailer you were purchasing for the why would that make a difference by the way suppose it was this exact same thing was offered by the online purchaser then it would not be a fraud it i was if the if i if priceline had this same program and offered this same pop up with a b still defrauding the consumer it might be i would argue that it's still it still is and why does it matter to the consumer whether this deal is offered by one merchant or another on the because that why it matters is because the level of scrutiny here expert again explained this there's a level of consumer expectation ok so if you if you bought memorabilia as one of our plaintiffs did from a particular online retailer and this pops up and looks like they're just offering you twenty dollars back on your purchase for being a good customer which is what they think it is they they don't look further to realize that oh it we're dealing with this third party some buying club we don't know anything about or maybe some trust you're saying between yes and yes and that's exactly what our expert said by the way and again not considered by the district where she weighed the evidence there is tons of conflicting evidence here we have the testimony of arc plaintiffs who say they don't remember any of this don't remember doing it that yes exactly evidence oh it is because it's exactly the point  that's proving that's proving a negative they said i didn't sign up to it and then they put this screenshot in front of them and say well you must have seen the screenshot i said i don't remember seeing the screenshot that's the point that's the entire point of the fraud evade that detection there are known tendencies you put the big flashing carrot twenty dollars cash back in big letters people don't see the other stuff that's the point and then this one negative option billing and the data pass which by the way has been outlawed by congress because it was so insidious the congressional findings alone because it is admissible under a don't three eight creates a contested material fact you cannot way this that's  r jury to way the judge did district judge did she credited fully the their position that well here's the disclosure so you must've seen it when they said they didn't remember it and when we put in evidence that said  remembering it is the very essence of the scheme because it's designed not to be seen it's designed not to be can you know ingested by by the person who's signing up for it and the other evidence we have which again uncontested they had this refund mitigation strategy why do you need that and lest not over ninety percent of your customers call because they want to cancel claiming i never knew i signed up for this how about the fact that you know run people around and they tell their call centers now is the time to make the sale when people call we didn't do it when they actually signed up for it do it now sell the product now now that they're calling to cancel or the fact that they had to create special procedures whenever somebody said attorney general or class action because so many people did this is all evidence all evidence and the senate committee is  ruling and such was what is that what we're what we're going to tell me what was the basis for that ruling and why it was wrong she said it appears the investigations conclusions were not derived from the adversarial process but from a one sided  addresses it and says that's not true it was in fact a investigative report of a governmental body there's no evidence in the record that it was a one sided inquiry that it wasn't adversarial and that's but even the standard under ru eight on three eight at summary judgment just ignored on the same assumption that assumption just assume that a senate report without any evidence without any hearing is one sided and therefore is to along with everything else in the totality which is the standard this is a fraud this is a whopper of a fraud and we have a district court judge who expressed hostility to the very idea of it from the very beginning as evidenced by her dismiss congressional investigation from the can point which certainly gives a complaint plausibility as saying it's one sided that's for a jury to decide you use a group thank you  report however it stricken from the complaint does that does that also mean it can't be considered as evidence that the rule fifty six did it could be considered at a later stage of the plainest and not argue it as evidence at then the summary judgment stage and  in fact in some of the cases that we cite talking about consent and doubleclick in some of these other cases there are ongoing investigations and what the court said in those cases is you can't use that as a surrogate for the plaintiffs own experiences that the plaintiffs are  fraud let them describe the fraud and prove the fraud but you can't look at things like an investigative report or an expert witness report and use that as a surrogate and also there's an important thing about the expert report too because a lot  of ink and argument was devoted to that issue today counsel argues that issue is if it's a do no issue for this court to consider for the first time that's not correct if the court asks the district court acts as a gatekeeper in deciding whether to admit expert witness testimony is there you know when i was reading the briefs and i thought well it was a very good argument except that i wasn't sure the district were handled the issue the way you wish it had is there a ruling that the expert testimony is in the brief the hagar case the barry case the baxter case the vistaprint case all involving very similar fact patterns the decisions by those courts were decided as a matter of law they did not reveal a scheme to defraud includes issue has only been resolved in a district court level but the myriad district court cases that we just cite in our brief discussing this precise issue plaintiff doesn't address them and his response what at this and said any person who's capable of doing it on line transaction with the retailer on the internet first you have to click on the banner ad to come to this page the terms are plainly disclosed you have to fill in information in our case you have to create a password you have to enter a personal but of and for nations such as your mother's maiden name city of birth elementary school that you want to know and then you have to check a box and right next to that yes button that you have to collect in order to enroll is a disclosure that says by clicking this yes box i'm agreeing to that try legion can of those cases and in fact on the issues all we basically have is an expert who by the way i did not study any of the plainest online enrollments did not do an empirical study it was one of these i know what all see it type situations and that's exactly what the court questions the admissibility of the proffered plaintiff's proffered expert testimony as to the motive or intent of the marketing design the trier of fact is unlikely to need an expert opinion that's something short of saying this is inadmissible i am excluding it from consideration i would agree that it would have been better for purposes of this appeal if the language in the decision had been more precise but that the fact is she did not consider either our expert witness or their expert witness and deciding issue of whether these particular name plaintiffs had indicated their consent to the on line terms by going through each of those items on the web pages they had to know and as the evidence is under speed that they had to do in order for them to become  analyzing this issue and so the way the process starts is my client enters into a contract with one of these emotions and gets permission to place a banner ad just like if you if you're right or uses you know what you just use  facebook but if you click on facebook or the weather forecast you tend to get pop up ads and if you click to them to get to an office screen whether to take a vacation or buy a new cell phone and that's how these organs to the customer first had to click on that banner ad and then they were taken to a separate page that presented them with a membership offer and again they had to do a number of things to clearly indicate their consent in order to be enrolled there was no default option that if you clicked on that banner and went to that page you were old you had to fill and the password created by you  show the screen shots that is a page that you're saying the consumer gets to after clicking on a banner ad that's correct so the banner ad pops  nothing in the record that says what the banner ad says there's there's the evidence is and we never got we briefed less certification we never got to a decision and the consumer judgment came first it was presented on a lot of different ways depending on the arrangement of the particular retailer but you had to click on something in order to get to what was called the interstitial page that then presented you with the with the offer i said because i thought the plaintiff's argument was that this page pops up whether you like it or not as you're trying to buy to at that point the order was already complete with the on line retailer there's other cases out there where that wasn't the case where before you could actually complete your purchase you had to go through this form at that point to the purchase transaction was complete with the retailer and by the way there's other things that the plainest overlook when you say the plane transaction is completed guys might understand exactly what that means that the plaintiff's brief suggested that even if it was somehow there was no confirmation or you didn't sort of get out of the transaction with the original retailer until after you had seen this again that was partly also premised on my understanding that they were saying this pops up that you know you give your credit card information you say place my order now and then my impression from them was this pops up this being what is in the record as the screenshots that i'm over my  and so the evidence in the record is that the transaction was always completed by the time they were presented with this offer there was nothing else they had to do in order if they could have turned off their computer at that point and the shoes or the airline tickets that they bought what arrived you have a lot of people would like to see a confirmation page or receipt page that they can have is some i'm questioning what it means by the purchase was complete the fact that they would get charged for their purchase doesn't in most consumers mean that they're confident that the transaction is complete until they get something that says thank you for your purchase and i'm trying to figure out is there evidence in the record i don't believe there's evidence in the record that what there is evidence of the record though because i think it is a good point consumers do want to see that there is confirmation if the consumer and or the information collect yes indicating that they agreed to the membership they were taken to a confirmation page to confirm that they had just bought this membership and they just got it and then they would get an that was sent to the same email address that they use for the retailer transactions and we know it's a good email address confirming the membership giving a link to the website link to it just felt terms and conditions so they certainly got a confirmation that they enrolled this is not the insidious what you just heard was precisely the type of disputatious dissection that this court has caution courts are not supposed to gauge and when evaluating fraudulent scheme particularly a man or scheme everything mr cleburne said would suggest that nobody should claim to have been confused or defrauded by the scheme but there were tens of thousands of people who said they had no idea they did it which is proof in and of itself it gets to a jury they had no idea they did that they signed up for this great fun product every step was designed to have made that knowledge even the confirming email that you've got to say is welcome to great fun when you get a million spam emails in your inbox and you don't know what great fun is you have no idea that that really means what they say it is and if you look at the actual e mail which is in the record it doesn't say anything about what it costs you recurring charges or anything just says if you have questions go to our website questions about what they don't know that i know grab it there is a relevant footnote of the district court where she disregarded dr caymans just saying we haven't identified a theory of fraud therefore his opinion couldn't explain it that's not how you get rid of an expert everything you heard mr cleburne said wasn't in the record or decided by the district court and it's not true by the way that evidence the senate commerce committee report he said it wasn't briefed i don't know what he's talking about issue on appeal number ten explicitly deals with the district court striking that from the complaint and in the issue on appeal regarding the summary judgment standards we discussed the se committee report as evidence that the district court disregarded they chose in their response a summary judgment not to argue that it was inadmissible under eight zero three eight and the district court didn't exclude it saying it was  under eight o three it just ignored it it's admissible evidence all of this evidence in its totality creates a tribal issue of fact in fact they don't all this information he said on the plaintiffs they only have one of our four point us that they actually provided the enrollment screen for so you don't you actually have proof that the other three point us according to their so called roman screen and roll which of course i don't really enroll but that's what they call it insidious language like calling a nuclear missile peacekeeper the monthly notices are another thing which again take advantage of known consumer tendencies why would tens of thousands of people allow these charges to rack up month after month knowing what they are because people don't look they don't study they don't scrutinize and that's the business plan to take advantage of people known tendencies their worst laziness tendencies that's fraud reserve decision