start with the first case which is seat of the united technolog thank you your honor samuel is acra from behalf of the appellant's your honor the ruling below in this case pushes the motion to dismiss beyond anything recognizable previously in the circuit the complaint makes two fundamental allegations one is that an ordinary consumer would be deceived by the marketing of these particular smoke detectors as being a home protection device and secondly that the device is not suitable for its ordinary and intended use the district court rejected these allegations as being legally insufficient on the basis on two bases one the district court found that a smoke detector is sufficiently precise as a label to describe something that can that can detect some particles of smoke although not the vast majority of home fire toilets it's a deceptive it does to text there's no controversy that it detects smoke when it comes from things like white pine cotton mattresses things not ordinarily found in homes in this day and age these are based on a technology that was devised thirty years ago when home construction was quite different it hasn't been updated to meet the requirements of synthetic matters and things of that sort and even the district court did not rely exclusively on that because the district court then went on to find repeatedly that any deception would be cured by the notice that was present on the box and the box is this your honor and i hold it up i've never done this before held the prop on appeal but this is the first tribunals that has ever seen this because there's no hearing below nothing only legible in the photocopy it's a legible here in order to read it i can't even read it with my reading glasses on i'd have to hold it like this and get good light because if it's just given a copy of it w district court provided with the box there's no way to to submit the box on the as a complaint as an item on the complaint the district court ruled on a motion to dismiss it never looked at the box it never looked at anything in this case and it made the determination that this curative instruction supposedly curative instruction on the bottom of a box on a product that sits on the shelf saying smoke detector is all that is necessary to remove any doubt about the capacity of this particular product to deter detect most home fires so the question then is what does how does this made the rule twenty twelve the six danders and you few look at the opinion below which you have is the district court saying and join kind of forty five that the notice on the bottom cures any misimpression on forty six that the plaintiffs allege misrepresentation and quote the court disagrees on page forty eight that the box clearly elucidates the warning that it does not detect many types of home fires even if one were to read this warning at the at the bottom it doesn't it doesn't say that it doesn't tell the consumer what the relative risk is and it is interesting that the consumer protection board the federal consumer protection safety protection commission says that it is necessary if there is a cautionary note to set the part with languages says caution warning etc on the bottom of the box there is something that set apart with the word warning and it says warning removal of the battery and disconnecting or loss of ac power will render this alarm inoperative so even a consumer that is looking for a signal that there is something that may not be amiss here would be directed to say just make sure the power continues to be working there is nothing labelled warning in the proper form now how does the district court say that in some circumstances photoelectric cell type alarms is and the other detects smoke sooner from other origins better then and the first is correct your honor and we'll edge in our complaint to the majority of home phone home fires inspire and specifically the met the majority of injuries and deaths from home fires are the result of one type that is the the large particle associated with synthetics and other materials that are commonly detention of the various types of fires an actor within the home and we was on its way into the differences between what's going on as a matter of law can a court decide whether that's confusing i believe that a court under the connecticut statute should not decide whether that's confusing or not i think the question whether it's confusing is one that connecticut law places in the hands of the reasonable consumer at the point said today is november seventeenth two thousand and sixteen and it was important fires and sooner than i as a shot it's crystal clear that they detect two different types of right your honor and if you accept the allegation in the complaint that which one does at this point that there is great much greater risk in one category than in the other category the implied equivalence between the technologies and the fact that they may be used to write a risk that most house fires are small and that is exactly right your honor that i should encourage them if they want to at least some protection to get smoldering fire detection and let the fast fire if your house is constructed of white pine and has largely cotton field fiber furniture in the house then that is but your honor we don't have to win on that point on the point about whether the warning is wrong if it is not prominent enough if it doesn't meet the standards of putting the reasonable consumer on notice and  that's the only legal authority that the court below claimed was the finke case and the finke case has is nothing like this there is no legal authority we would recommend to this court to follow the ninth circuit from the williams vs gerber case which says that it is not the responsibility of the consumer to go searching around the box when the representation is quite clear as to what the product does  curate please the court let me go right to the heart of this the first holding of the court below was that there was no deception to begin with and as we showed in our papers and as we argued directly disclosure obligations of the kind that are reflected in the cases that mr zucker up just refer to those disclosure obligations arise only as a corrective when there has been an affirmative misleading statement somewhere else there is no such misleading statement because of these  facts to the court ok go ahead ok in our view the issue of the size of the what is called the descriptive material explanatory material is actually not relevant because the box the well more than the common understanding that it a detects smoke it detects smoke from both fires and as you recall it is purchased by ninety five percent of the consuming public it is also approved by the u laboratories of course do you and they describe this in the complaint i'm not going out of the record they describe how you all laboratories has set up a small during and a flaming fire test and all photoelectric and i  both tests and they draw the lines on some of course modern fires are taking longer to detect their smoldering so that the numbers are there and you'll see that there is a marginal difference between the performance of the two in those two today that there are going to be a large percentage of such fires so this warning needs to be more prominently well it's not like we number one it is not a warning number two it is set simply description number if this is left up to of course it's in the building it says what is a smoke alarm a smoke alarm in the connecticut building codes and by connecticut statutes is of course what is ul listed that's what the statutes say  the universal building codes and you get your you are listening bypassing this ul to seventeen standard described in the complaint that provide your listing that the finds what a smoke alarm is detecting smoldering fires versus false alarms bad detection which causes people to shut off their alarms what are those how that was balances are drawn we're not here to decide under the cutbush statute which is better we are simply deciding cup is limited to the sept of an unfair practices and that doesn't mean we figure what is best for consumers to know what is best for consumers to understand should this be displayed in the store when they when they walk into the store and should they be given any more information that's not what cut the deals with it must be deceptive and i'll talk about that in a moment or unfair is it deceptive no that's where his cases come in where there's been a description such as the lange in case which was the principal case they relied on in the lying in case there was a general description of the product and the product was natural sun block and some of that manufacture comes in an argues some of the active ingredients are natural so natural sunblock the consumer looks at it and says so that would be literally true the argument would be that would be literally true in one interpretation but the other interpretation of that same language is would make it literally false is everything in this container the sun block natural so that's what the definition of misleading is it has to be the false or misleading misleading means literally true but false in another sense there is nothing false on our packaging and that is what is the size of for purposes of the cu again it's you click the link to it you will see that is a document commissioned not by the commission by the staff to do a little study not about how you mark product packaging but instructions what you go inside the box on the detailed revelations and it's goes on for many pages about how you construct instructions inside the box not to label it as a cut the issue and moreover it makes clear that general descriptions of the products performance is not the sky and the stuff you warn about it is a description of the products performance and its relative merits so we are not unhappy with our said the second holding was suitable for its intended use think that's what he was alluding to merchantability again is it is actually quite easy to determine the boxes is marked as an ion as asian smoke alarm and having been raised at this point because of privity and i just want to expand on that because it's it's always been a subject that interested me in this sense the the merchant ability claim that's raised here is statutory it is from the u c c they cite the statute and the statute is a in the sales article of the u c c and it provides what the relationship is between the purchaser and the seller and the purchaser in the seller if he is dissatisfied with the product he gets his money back from the seller the seller is the retailer in these circumstances so if you're relying on a statutory claim of merchantability you're in a commercial context privity is required he says the law is going to change and we're going to be expanding that concept of merchantability and it's going to be getting different based on trends in the law but the law as it exists merchantability is satisfied here because this is exactly what it purports to be which is a nine is ation smoke alarm for interpret what this statute is i just want to go back to the last point which is  the debates about what should be allowed in the home what should actually be in the building codes what you should should approve how they should describe it how they should this i've the instructions whether both should be required in the building codes which is the argument that mr zak ruff is making with the both should be in the building codes but i am both they say they are one state that has actually done that by law those are simply those are all reasonable debates that can be played out in public policy institutions and regulatory bodies but we are here looking at claims or fraud and claims on the cut and that is a deception statute and that's what honor come back to the fundamental question which is how does this play out under rule twelve b six and the case law in this circuit says repeatedly mostly there in summary orders but they always go back to whether there's reasonable arguments on either side whether there's plausible arguments on either side it is not the task of the district court to try to resolve those those questions so as judge leslie asked at the end of my opening  if there are clear cut matters of fact that informed the legal decision certainly that the district court can can handle those and we take no issue with that the question is in fact it was it was  it was well framed by counsel opposite he makes a claim that this meets assume the art that the the ul approval is dispositive in this case because that is that shows that they have met every standard that has to be applied that's factual issue whether state of the art whether it does meet state of the art whether state of the art is the appropriate defense when the wreck when the successes there's nothing  anything in any part of the packaging he points out to the extent they rely on consumer product safety commission and guidelines though those applied to instructional materials not labeling and that there's nothing in the complaint that possibly alleges a deceptive is for presentation well the question under connecticut law is whether a reasonable consumer in faced with this would believe one or the other that's why the langan cases it is instructive and i think that a reasonable consumer looking at this thinks that this is a fire alarm i can only judge here from my own experience i now have to go and rebuy fire alarms from my home because i had no idea that there were two kinds of fire alarms and  absent was speaking i was looking for where it does say ionisation on here and i did find it a little worried here that says source ionisation if i were a consumer i would have no idea what that meant i would rely on the fact that this says smoke no your honor because that's not a good standard is the connecticut standard for an acceptable small alarms does not set of a standard with regard to misrepresentations your honor i don't believe it doesn't for the following reason if i regulatory and the underwriter laboratories certification serves as a kind of preemption or primary jurisdiction in this case that divest the of the common law and the state's statutory consumer protection law of all authority in this domain i think that's an error as a matter of law it may be that that establishes a defense it may be that that establishes the state of the art maybe but that's a factor and courts common law courts often go beyond where state regulatory authorities have gone have determined that a product or even state regulators haven't kept up with the changes in our lives in our technology and so forth so there's nothing precludes siv about either an industry group saying this is the what we did thirty years ago or even the state board thank you thank you