and who did not receive the mandatory delivery fee that was automatically added to customer bills by the defendants instead the defendants retained the entirety of the fee the claim arises under new york labor law section represented or allowed of their customers to believe that the charges were in fact for their employees involved a situation where there were representations made to people that if the charge though is that the same into decision is clear that it's represented or allowed the customers to believe that if there's no reason here to believe that anybody actually thought that other than maybe you i mean used a conclusion really that  customers would have been misled or i would've been allowed to believe in error if this was a tip but there's no indication that anybody actually believed it but your honor this is a totality of the circumstances test and it's a reasonable customer test so the question we believe that what we would really need to do here is go through fact discovery and formulate the facts that would inform that analysis of whether or not based on white defendants did say or did not say that what the customers actually believed as a result of that suddenly overcome the hurdle of the plausibility standard at the start as the district court noted no delivery fee does not have the same  of people as a service charge delivery fee often refers to i think generally refers to the cost of putting the transportation could into getting the boxes and bringing them to the home which would not be part of the two that is that the cost of trucks fuel packing materials and salaries the interesting thing about delivery fee and where in the description occurs on the website as well is that it's in the section that it's titled service fees and tipping and so if you go through that section and you believe it's a service fee that's certainly informs the reader about what a delivery fee in that context means i would say that again it goes back to what a reasonable customer would believe for delivery fee and also in context when you're talking about delivery drivers who customarily would receive some sort of for making the delivery and particularly in the case where when a customer places an order on the website there's no place for the customer to actually at a tip when the customer sees instead is the delivery fee that has been automatic automatically added to their bill and so when you take a look at the totality of the circumstances here and what was planned in the complaint and those those facts include that  just mentioned the only thing that customers see when they place an order in is the delivery fee they get a receipt which lists the delivery fee they don't get to add a tip when they check out and there's no notification on the website whatsoever that the the district court and defendants also reliance and other facts from the website which i'd like to talk about briefly one of the facts that the defendants discusses from the website is the structure of the fees the defendant say that the fee was a fixed amount a lower amount for orders over one hundred dollars compared to a fixed amount for orders under one hundred dollars i would say just from the complaint itself you see that this fact is in dispute we do not know yet that fact will actually turn out or what customers understood from that disclosure i would say that we had just started discovery and based on what we have seen so far but the tip gets larger it to some doesn't get smaller sometimes customer customers went that way i don't know in this context when you're talking about orders delivered to your house if you don't think a reasonable customer wouldn't think about it in terms of well for a certain value i'm willing to pay a certain amount for another valuable in the past another a just ask you know i hadn't focused until you mentioned it hell the tipping and the delivery fees are under a section called service fees on the website right right but consider when you go to that page and says service fees and tipping doesn't really cut exactly against you because they clearly distinguish between service fees and tipping is where is insomnia until the suggestion was that the service fees were misrepresented to be that tips or is next page they clearly say here's  service fee and oh and guess what tipping is optional you know i don't think there's clearly distinguish and they basically say these are two mutually exclusive ideas that's right on the face of the no your honor equally plausible reading of that website disclosure would be that as you look through it service fees and tipping when you go down the st section describes i believe the way that delivery fee structure works and then talks about a pick fee and then after you get through all that has been a mourner's have to be a certain dollar value and then you get past all of that then it says that tipping is optional by the time a customer if they even read it which we don't know because it wasn't on the website when they placed the order a customer even got to that point by the time they've already understood they're paying a delivery fee of course they would think then well tipping after that would be optional do you think that they would read that as saying tipping is mandatory and extra tipping is optional that's how a reasonable question would would understand that certainly reasonable customer could understand it and we haven't we haven't been able to yet develop the factual record necessary to go through that  tell you the circumstances test which is required understanding and so my time is nearly out i reserve two minutes for rebuttal thank plaintiff's complaint lacks the fall back to allegations that would give rise to a possible claim rather the allegations and facts in this case as the district court found there are three undisputed elements that preclude plaintiffs from serving and playing here some of whom we've just talked about and st the delivery fee is described as a fee for the delivery of groceries and is placed on the order at the time the order is put on line nd that delivery fee is set it is nine hundred and ninety five dollars unless it exceeds one hundred dollars in which case it is reduced and be reduced further through a coupon believe as we've recognized here today most customers do not tip less as the amount that they purchase goes up and thirdly the website clearly says tipping is optional is not expected but always appreciated the three words tipping is optional leave no room for interpretation  livery fee there's a restocking fee there's even a check handling fee if your check bounces you get charged ten dollars no one would say that those other fees are gratuities just as the delivery fee itself should be at the gratuity by not placing a disclaimer on the checkout page that the fee is not and thus unless there is a disclaimer pretty much any mandatory fee is going to be considered to be under new york law and that's not the case expressly linked to the amount of food and drink that the customers ordered as that amount went up the service fee one dollar and the service fee was also in line with the customary fifteen or twenty percent tip that banquet servers would place on fees for  allegations that defendants allowed their customers to believe to believe that delivery fee was a gratuity say for example by not responding to a question of what is the delivery fee the website explains what a delivery fee is they also didn't preclude their drivers or plaintiffs here from answering a question about delivery fee or from accepting fees from the customers directly which was what would happen in this instance none of those allegations are present here  with respect to the hospitality industry wage order and the department of labor's opinion letters which we would argue do not apply here anyway the district courts still analyze the claims under those regulation in the opinion letter under the  circumstances test that we that the court is asked to use in reviewing the claim on a motion to dismiss and under the wage order that wage order doesn't apply to charges for food beverages lodging and other specified materials or services the delivery fee is exactly that there's a specified fee for the delivery of groceries and asked for the opinion letter which addressed whether a bank with service charge should be distributed to the waitstaff  the opinion letter sets forth a non exhaustive list of factors relevant to that determination and the district court went through each of those factors and found one laying them all to the fatality of circumstances that the lack of a tip lin on the order form did not outweigh the remaining facts and allegations in this case again we would say that neither the wage order nor the opinion letter apply here the wage order by its name applies to the hospitality industry which includes only restaurants and hotels not supermarkets and in the opinion letter was issued directly in response to a question relating to bank with contracts and by its terms was confined to those contracts neither the wage order nor the opinion letter indicate that they should be applied here in the end the district court properly applied the standards and analysis in reviewing plaintiff's complaint and found the plaintiff failed to state to play one of the new york labor laws despite having ample opportunity to plead their claim including an opportunity to amend their complaint after seeing our pre motion letter dismiss plaintiffs have failed to plead sufficient factual allegations to show that a reasonable customer would understand that  this case not begun there's been no statement in any of the briefings to date that any discovery would change any of the facts as plenty of the allegations here and really nothing plaintiff can say or allege are going to alter those three hundred dollars speeded facts that we spoke about earlier the fee is for the delivery of groceries it is a set amount that only decreases as the amount of the order increases and the language on the website is clear tipping is optional it is up to the customer whether or not they want to tip the delivery driver and for those reasons the district court's decision should be a st thank you labor guidance concerning what disclosures would be necessary for the employer to keep if he applied to this case it rejected that notion and so what we have then is the totality of the circumstances test that test cannot be fully done until we have all the facts my colleagues suggested that those facts would not change if it was the case that those fees were not as disclosed on the website and did differ in a way that was not put on the website that fact may make a difference here in so what we really are dealing with that's why we're dealing with the totality of the circumstances test and why we need fall faction of element before that can be decided he also suggested that the district court went through the opinion letter and applied those factors to the case here the problem with that analysis under the opinion letter is that if you look at the st factor the notice that the opinion letter is just this discussing is notice to the customer that the employer is not keeping the fee is not known as in general to particular notice and so if the court had actually applied the opinion letter the way it's written there would be no basis on which to find for the finally my colleague did mention the fact that the district court did a balancing and did a balancing of the facts i submit that's an improper thing to do on a motion to dismiss where there are factual issues and therefore the case should be reversed and re