for you start restricting rows of and must be allowed to put forth evidence showing that certain amounts should be offset against the baseline as calculated via look at those gross receipts am i wrong at the point of this rebuttal was to exclude situations in which despite the presumption of reliance there was no annoyance is that what the the issue is there i'm sorry say that again  is the the this cordon bleu hippo said that the district court that there could be a presumption of reliance in this case right and sent it back to the district court and said now you are taking that into account decide whether the conditions for the presumption of romance is that right yes i the best way i put it is a struggle and the presumption effectively flips the burger traditionally plaintiff has a burden production of going forward and persuasion right but here the on which that burden has shifted is the question of whether the consumers to whom what are now stipulated were misrepresentations were were made relied on those misrepresentations that's the issue that the  misrepresentation of omission yet and that is critically important because as we all know once you get the presumption put to my client he needs to prove that the omission did not negatively impact the consumers exactly because they did not rely exactly and as and but now here's the here's my problem it's at and see if you can explain this to me because i'm having trouble getting it the the mis represent by omission is the omission to tell the consumer that this store credit was not applicable against shipping and handling and sales tax and sales tax and now i understand pretty well an argument that gee probably these people didn't rely on that at all because really they're imbecile by the specter that they're going to get the credit in the first place for buying a computer on credit and if they don't they'll get store credit so they can't really lose very much and i don't know whether shipping and handling tell if they had been told oh but shipping in him lying isn't cover that would change anybody's mind but what my problem is is once there is a presumption in place that they did rely on it how would the fact that some people down the road weren't charged shipping and handling at all have any relevance at all to the question of did a consumer who was told falsely it's not stipulated that even by omission that the store credit would be good against shipping and handling that's what they were told at the time if it later turns out that the company's policy wasn't always carried out and some people that were never charged a family anyway that's that goes to whether it was true or not really or something which was stipulated a way it doesn't go to whether the person who is told in effect the store credit will work against shipping and handling is going to rely on that or not rely on that when the thing you're talking about is something that nobody in my client who was an a i don't i don't know there's a theory that has got a legal theory doesn't there as to why this evidence that you're looking to get in discovery would be relevant to the issue before the court ok which is is this something that this person could affect whether this person relied on the representation or didn't know my client would be should be able to show individual instances where d reliance upon the consumer's reliance was either unreasonable or didn't happen or didn't result in damage why would you know it didn't result in damages you want to look at these particular people and say that they weren't put all the people who are in the category are people who never got anything from the company not people who got something and were in charge shipping and handling i think the best like i explained it is a sales tax and an example suppose a purchaser lived in omission that blue hippo made with large united states would not apply to new hampshire with the but the presumption is that the representation that the store credit would apply to shipping and handling and sales tax is what's at issue right so we know that the new hampshire residents didn't have sales tax how is it going to be of any value to you to rebut the fact that they the presumption that they relied on the entire misrepresentation to show they had no sales tax i just don't get it i think i should be able to unpack that into a sales tax component and shipping component but the public summer doesn't have any idea at the time apparently the company didn't sales tax and sales tax could not have been charged it was not charged i would say there was an omission or all and if there wasn't no mission there could have been any damage if there wasn't an omission now you are contesting what you stipulated to which is that this was false now you're saying it wasn't really false at all because at least in the case of new york was only two thirds fault because two new hampshire residents the only relevant misrepresentation was that the store credit would operate against shipping and handling not that it would operate against the nonexistent new hampshire sales tax now you're contesting whether that was entirely misleading or not you're not that's not about reliance the issue is did this consumer rely on the fact that he was lied to in this particular way which is stipulated i would just agree that but let me give you the shipping example there are many instances that we all think we can all agree you'll see advertised on t v or on the internet where if you reach a certain dollar threshold people who are in this damage calculation are people who never bought anything so how would they be affected by how would their damages be affected by the fact that some other person in some other state was not charged shipping and handling and the problem i have with the proof is the way that when you take that when you take the presumption and put it on mr ranson and he has to show that deal mission did not do maybe i'll buy a printer if there's one for one hundred dollars or something they then book or go to the shopping cart like we all do and they see no shipping no hamley cost no tax these are the people that don't buy it none of these people bought anything so how was it relevant whether for some reason which i can't figure out why some of these potential purchases didn't include shipping and handling maybe you can answer that question to why why wasn't there a charge with an i don't know it or we don't know either as and that's why we want to get the discovery out of the blue if you don't know either now i don't know because some states don't permit shipping and handling over a certain amount of you don't know i don't know i can't represent people to follow up on what useless was pointing out these are the people the screen shows up for their shopping bag says here's your printer for one hundred dollars by the way there's no shipping helier tax on it and they say i'm not buying doesn't make any sense if the fifty five thousand people didn't buy it evidence of anything even before they get to the point of looking for a refund that's not even the point of reliance the point of reliance's when there's a guy on the phone telling them this is a great deal you cannot lose because if you make your payments you will get a computer on credit and if you don't make your payments don't worry you can't lose anything because you're going to get a store credit by which you can buy the printer to go with the computer that you're not actually going to get it and so you're not going to lose anything and at that point the question is at that point are they relying on this implied representation that that's pretty it covers shipping in him like you know this that i don't even think that's a terribly logical conclusion but we're past that and we're past that there's a presumption that they did rely on it and i want to know hallow something that happens months later to other people is relevant to what the person is relying on when they're on the phone deciding to enter this deal which leads to their not getting anything for the millions of dollars of payments that they made that's what i need you to explain to me and i'm not getting there are three things that th would satisfy my clients bergan one that there was no reliance to that the reliance was unreasonable or three that the person wasn't damaged going to the the unreasonable unreasonable miss of the reliance on how could it be unreasonable to rely because of the fact that these people have no way of knowing and that's the point judge i need to show through circumstantial evidence through no you need to show that they had some way of knowing that this shipping and handling issue that you're raising had some varying on this and they have no way of knowing that at the time that they're relying or not relying so why is it unreasonable to rely on a representation that shipping and handling are going to be cut heard when you were telling me that for some unspecified minority of people it turned out that shipping these people no way of knowing about the shipping and handling wasn't charge why does that make it on reasonable to rely on what you're being told at the moment i was in iran or that it's unreasonable let me just put it this way imagine place yourself in my shoes that were wheels comes back and says that if the presumption of reliance applies right if then the british ships to my client ok if you're me what do you do maybe you can't do anything because maybe there is no argument that some you all to you if you don't have to have some ever knew to produce evidence that is irrelevant you've got to explain why it's relevant to these issues and as to the damages it isn't relevant to the damages either because these are people who did not get anything they're not the people who did or didn't get it if the f t c was charging her client on the theory that everybody was charged some amount of shipping and handling based on some average or some theory or something it would seem to me you'd have a very good argument that you're entitle to look into who actually did and who actually didn't pay shipping and handling but that's all irrelevant to these folks because the only people that you're being charged with are people who didn't get anything with or without shipping and handling i think that's problematic because in   own mission case doubt or defect we turn and rebuttable presumption suction that's how it could be repeated because if you had any evidence but that was relevant to the question of did they rely you could rebut your only telling me that you don't have any your customers got nothing they don't get paid they don't get what profession ought to get that's the analogy they get screwed well your honor i would represent the police federal trade commission's matter as judge lynch has made clear in the questioning before the focus on this issue is at the time of the purchase when the consumers actually entered into their initial computer purchase did they rely on the written representations at that time here consider as judge hall indicated and wrote in the blue hippo one matter the injury that occurs at the moment of the misrepresentation which team subsequent purchasing decisions so here consumers might not have entered the the transaction at all from the beginning if they had known all the terms of the store credit policy including the fact that they faced the possibility of additional charges when they redeem the store credit so the focus of judge lynch is made clear in these questionings before my opposing counsel is the fifth time that we're looking at is not down the road whether store credit is at the time to consumers when they failed to disclose the material terms of the of the store credit refund terms he did not tell consumers when they entered the transaction that's the time period we're looking at that store credit  not cover these additional charges that's the time period we don't look down the road it terms of what would have occurred months or years later and this is very important to consumers because in fact consumers as a district court indicated  believe they were entering essentially into a risk free transaction they thought at the time they gave money they turn money over to blue hippo that they would either get a computer if they got me all the financing payments and and satisfy all the criteria or worst comes to worst they get a computer they get a monitor they get a printer or a camera using their store credit they would pay for all of that that was a representation the district court found july two thousand and ten that the blue hippo  contempt by failing to disclose those terms of the store credit policy and that was an challenge so that's new judy kitted finding so again the misrepresentation and the time period that we're looking at is at the top bloom of the initial representation in issue in this case anymore i don't think but i am still a little puzzled why this is such a critical term if it were true that the customers would be able to redeem  the store credit for things that weren't of any actual value to them you know i can get a three hundred dollar camera because i paid three hundred dollars in there is the shipping and handling that's being charged something outrageous it not proper shipping i have it and i use it it seems to me if i'm told that i still think that's a pretty good deal i don't know it and it may be that the the real problem seems to me is people are being induced into a transaction where store credit is never a substitute for getting your money back because when you go to the store you going to find that there's nothing you really want and actually if what the store sells is computer peripheral equipment and you never got the computer i'm wondering why the real problem here ten to fifteen percent category this meant a lot to these people again they thought they were entering a century no risk free transaction but they were not because there were these hidden fees down the road but again what we're looking at in terms of the timeframe is not down the road but at the time of the initial transactions are sitting there before they give any money to look at it in their transaction they want to know all the material terms there deal they're knocking the benefit of the bargain ok and so when they find out you know what what the actual misrepresentation here was a failure in some number of cases people who did buy something more not charge shipping and handling where does that evidence come from and we have any idea why that was so the evidence that he's asking for what  of all of the people the eight thousand as opposed to the fifty five thousand who didn't get anything wrecked the eight thousand who did try to redeem their store credit and the why is there some reason to think that the since record that's now here forget the eight thousand isn't for the moment that he's trying to look at correct so i think in this is in his brief and we address it as well i believe that it extends or maybe guess mysteries but i believe it extends from there was some testimony during the original  that store credit handling would be covered by store credit i'm sorry all my merchandise will be handed by store credit with no exceptions with regard to these two hundred fifty seven fifty again these are not even part of the injury for this is just what he's trying to people who actually risk in the few instances exceptions to this policy there was any kind of systematic or categorical reason it could have been error it could have been in response to consumer complaint there's nothing in the record with respect to why this one third of these folks who in fact did get something up from the injury pool didn't pay theirs again no and that it seems to me if if there had not been a concession as to the policy that might be something that could be litigated as an argument that no we didn't make misrepresentation because we didn't have a policy of not applying the arrows in the other direction it was a mistake when people didn't give the credit but that's that's all under the bridge by now correct correct that's right i mean that was  depose each and every one of those fifty five thousand people and ask them did you care about the shipping and handling that might be something that's round but the fact that you are looking for is about whether other people who aren't even part of that fifty five thousand people may buy policy by accident by some miracle or not charge shipping and handling and i'm just having a lot of trouble understanding why that goes to the mental state of the people at the moment that they bought and why it would say tell us whether they care about shipping and handling which is the issue where we're looking at well i know that since i was a trial counsel this point i would submit and i believe happened was trial counsel was trying to be as discreet and you dishes as possible by not wanted to at the least listen to stage depose everyone by just getting the initial documents from the blue people trustee to see what's there and maybe at that point we we can't make a case we throw it out but maybe there's something there maybe a base upon that like ok we got something here out of the seven thousand orders maybe only five hundred or worth you know drilling down into maybe it's cost cost prohibitive you know i don't know hoped maybe you look at these documents and it turns out that actually the expert was mistaken and that everybody was charged shipping and handling and you give it up i understand all that kind of issue the problem is to get discovery you have to have a theory as to why it would make a difference if it t g to say good stuff from your vantage point what is that anything to do with or if you your honor i would just make this for perrie's the rule twenty six the discovery doesn't need to be admissible it needs to lead to admissible evidence and potentially lead to the presentation of the litigants case i would submit that where you have the misrepresentations the omissions by blue hipbone blue possible employees two blue hippos customers my client who at that point didn't have