morning i'm todd bank for the plaintiff robert doyle given that the marketing promotion had a maximum total donation of four million dollars dawdle believed that there would be at least a reasonable possibility that the total amount that was raised would actually fall short of four million dollars the flipside of that being that he believed that a given qualifying transaction would result in a donation that is the one or two cent donation for which there would be at least a reasonable possibility that that donation would not be made absent the qualifying transaction and mr dawes believes are reflected and further supported by master card's repeated use of the term goal the term goal as i think any normal person would commonly understand it is an achievement that one hopes or intends to reach but that has a reasonable possibility at least a reasonable possibility of not being a expectations of the party i don't know if there's ever a contract that could be limited to its literal terms because we all we all have a certain understanding we're not robots but the point is a contract has reason to understand this let's use an extreme example  not be reached for example let's suppose the each each promotion each year their promotion was roughly two months or so let's suppose just to make the point let's suppose that in january first the promotion began it was scheduled to end no later than the end of february and at twelve o four am on january first the quote unquote goal the four million dollars was clinched would anybody say that there was the entire campaign was this ascent was essentially a sham that that there was no possibility no reasonable possibility and in the example no possibility that someone would actually make a transaction that would result in a donation that would actually make a real a true difference in reaching that goal the answer would be no that goal was going to be reached regardless of any one given qualifying transaction met the ark the whole point of the case is that mess the car knew all along again let's say beyond the reasonable doubt nothing is a an absolute i suppose but messed the car new for all intents and purposes all along that it was always going to reach the quote unquote goal that it was always going to give or pay or donate the four million dollars to the ch organization so what really happened here as well as we describe it and we haven't done discovery to prove anything yet but as we describe it what the four million dollars really was was not a donation that was meaningfully based on qualifying transactions it was it was a payment that to this charitable charitable organization that enabled master card to operate the marketing promotion in which it convinced or tried to convince people that they were actually contributing to a worthy cause when that in no meaningful sense as we describe in the brief in the complaint in no meaningful sense was there any truth to that at all and again is there an explicit term as to the reason let's potations no but th is it is to be interpreted to include the reasonable expectations i think if anybody knew any can cardholder knew just again using the extreme example just to make my point they knew that then want if a person had no yes if a explaining if a person had known that massacre was going to reach that donation all along then they would say so what do i need to participate for my participation has no real effect on you it's meaningless they want to do and you wouldn't spend ten dollars on dinner you might not that's a whole point masta cause the whole point of the promotions messed car was saying if you're going to dinner you're going to go nice dinner and spend more than ten dollars having in mind that the reason you're doing this is  and yes they might pay with cash in my pay with another credit card a debit card there are many ways to pay obviously how is messed a car going to deny that they were hoping that people were going to use a master card in situations like this when they otherwise would not have well that's a hope one of the campaign the news or card does go to the facts here as i understand it why you say mastercard knew this was that they had run this promotion before and they had always hit their target many many in many days before the scheduled end date and again this is all subject for this this is all left to discovery so if they had disclosed that it wouldn't this isn't a circumstance it's unique to the er your client many people might not have participated in the promotion and indeed they might not have reached the goal isn't that right if they had disclosed how early they reached it well again that what you're saying that they didn't they failed to disclose that they always reached the goal and they always reach get well before the end of the promotion day well if they said that lots of people might not have participated the end then watts and then they may not  reached their goal they'd be be sure with what you're saying they they would have reached their goal in any event doesn't seem is obvious well first of all first of all the announcements as to having reached their goals were not part of any contract so we don't know who saw them but again it's seven a week that's it those are questions for discovery i don't know what mass the cards of congress have shown they might say i mean we're talking about millions and millions of people to your client now yes yes and only discovery would show if your theory which i understand any only discovery could possibly show if that theory has any application in it perhaps it does but we haven't done discovery yet there could well be internal memo that maybe they even did a study in one of the user ears that said we've got we have no indication that any more than the slightest fraction of cardholders we frame from participating because they knew that last year we'd reach the goal earlier and that therefore this year we would too so they don't have to predict is it possible yes but that can't be resolved on a dismissal motion without i mean done discovery for all i know maybe it'll turn out to be that way and maybe they maybe they were committed they wouldn't reach the goal by you know four or five but that theory which again it might come out to be true theoretically i don't expect it to be but that's for discovery to to address it will hear you ok thank you doyle is alleging doesn't constitute a breach the court asked the very right the right question from the get go what is the breach that you are alleging while acknowledged in his papers that the terms of the so called terms created by the advertisements are clear definite and explicit as the lower court observed the while actually completed compliance with the terms which are very straightforward a card holder makes a qualifying transaction that transaction is made on the earlier of the date on which that goal is matched the four million dollar goal is met which we call the clinch state or the scheduled end  of the programme if that happens a donation is made that's it those are the terms crystal clear doyle doesn't allege any breach of those terms he doesn't say that the donations were not met if they met those conditions that's it there's no breach so instead we're left to talk about a series of reasonable possibilities reasonable expectations those expectations cannot vary the precise terms of the agreement what do you say to the argument that when you continue to advertise this contribution after the goal has been met you're suggesting again and again to people that these transactions will benefit you would be as though you published in the newspaper every every every week that you're going to match ten thousand dollars worth of contributions to a charity even though two weeks ago there was all matched and you paid your ten thousand dollars if that occurred you may have some if that extreme example occurred you might have some other kind of cause of action but you wouldn't have a breach of contract the contract terms here are very clear again if you're saying that if the ten thousand dollars matching had been achieved two weeks ago and you published the same ad in the newspaper and we will match up to ten thousand dollars for contributions to this charity that that would not that would not create a contract that you breach because going forward you're not going to pay cent if the ad discloses that the contribution will be made either before an end date or until the goal is reached then that's it that those are the variables that are stated in the ad so even in that extreme example it wouldn't constitute a breach of contract could it constitute some other kind of cause of action maybe but that wasn't alleged here so even in that extreme example it wouldn't be a breach of a contract so long as the terms of the contract are disclosed and they were disclosed here additionally let's assume for the sake of argument as we must let's assume for sake of argument that he's right  the complaint doesn't even allege that the plaintiff saw a post clinch data ad or acted on a post clean state ad so we're talking about these terms in a complete vacuum first of all the terms are all set forth in the agreement but if you want to claim you were duped and that a reasonable expectations were not met because you made a purchase and that purchased occurred after the clinch date how about an allegation t complaint that i made a purchase after the clinch date i saw the ad made a purchase after the clinch date relied on that ad and was duped and therefore the contract was breached even that allegation is not contain complaint then in this analysis you can see that each appearance of section it in the newspaper is essentially a new contract i'm not conceding that it's a new contract i'm merely taking the plane to start the plaintiff has argued and i am accept for the purposes of argument the plaintiff's argument that these ads create a contract if they create a contract then a there has to be a breach of the explicit terms of the ad and b for you to be for you to have and this reasonable expectation you have to allege that you saw the ad that the ad occurred that in the ad that you saw was post clinch day and that you made a purchase and reliance on that ad post clinch state i don't see those allegations in the complaint they're not there he also alleges a breach of the implied covenant that's a wholly duplicative claim if you look at the complaint it's exactly the same allegations plus the word bad faith that's it the case law is clear that's a  court needs to spend thirty seconds on that claim because at the end of the day the plaintiff has acknowledged that he personally doesn't state that claim he doesn't have the claim the court could have just as easily as we argued below dismissed it on will twelve and six grounds is that because he didn't do any transactions in d c correct he didn't do or do transactions in d c he didn't make it he didn't make a purchase in d c he's seeking to represent a class a subclass of persons who made such a purchase but he doesn't have standing to do it he didn't he didn't make a purchase in d c he's we assert the contract included the term that the reason will understand it would be that a qualifying transaction would result in a donation that would otherwise not be made then yes by definition a post clinch date we use the any basis to deny leave to amend the complaint to specify that more explicitly than we did that he made purchases using the corner after the clinch in reliance on having seen and published after the  that's what i was just explaining i thought the complaint if not explicitly stated that implied it and that that's why yes i think leave two men would be awarded the look because again could we make it that allegation consistent with with the allegations that we have made of course we could  and of course we're prepared to do that i think there's a little possible confusion about how because this would be did you ask the district court to make that amendment i honestly don't recall and i don't recall if that  don't recall them having made the argument that would have prompted that request i don't remember either side of that equation i really just don't recall the as far as i want to give an example how because this idea about a unilateral contract which is what it would be here in clarity the doctrine that reasonable understanding of the parties are still part of a unilateral contract just like in the case of a bilateral contract it still applies and i'll give you a quick example someone posts up a sign last i lost the night and if you return it to me i will pay you  hundred dollars i return the last item and now we have a dispute says well i never said when i paid one hundred dollars well it's this there's an impact there's an understanding that it would be paid within a reasonable time that we might actually disagree about what that is a day a week w have you but the point being that merely because the contract terms didn't explicitly say that a donation would be made that otherwise would not would might not have been made that doesn't change just because this contract in the offer as in the last dog i will pay one hundred dollars for it's return it didn't say when but there's going to be a reasonable understand it so if you return it in the person said i'll pay you in an hour we probably all agree that that's ok these i'll pay you in thirty years we probably say that's a breach of