hear me and you hear me ok i can hear you yes i mean if we were to agree with you and say that there's not enough showing on the impact factor issue what impact would that happen because we have several sort of categories of behavior that are at issue here the period or issue on the impact factor and the and next thing and so even if you were to went on one of them that doesn't necessarily you it went right with respect to that count one there are multiple issues that the f t c is claiming or deceptive and so it has to prove that to win on that claim that has to prove that these were quite differently made the journal publishing practices deceptive and this leading to more consumers now i want to make sure i understand your position are you saying then that if we have break with you will take the issue that you decided to argue that impact factors should we agree with you on that review editors the impact factors or with indexing of the articles and that is all of that st claim and i think when the court looks at those together you see that the f t c has not carried its burden to show the issue that the f t c he pushes on this is that the defendants were not able to produce a record of every single peer review that they had ever they did however present significant evidence that  of fifty percent of the articles that were submitted and so we're talking about well over sixty five thousand dollars articles and so the fact that there's a whack of records for every single one does not mean that peer reviewed an app unfortunately just wasn't able to be with respect to that i think that again this is sort of a feeling that we've seen is the f t c sort of overstating yet evidence that it has presented and with respect to  incident it's not as if they intended to separate conferences and it was an issue and so when you start to go through that evidence for example the declaration by julia hurwitz appears i  counted five times in the ten documents that the f t c replies on and again that's five decorations or five complaints by the same person about a single incident again this is a situation where we have a significant amount of business that the defendants are doing and a very small number of complaints and when you have them argue put it each other so it doesn't it may look as if there's a lot of smoke there but when you really look at the end  clearly identified the part of the journal as open access journals and in open access journals one that is supported by publishing fees charged to the office so that it can be distributed free of charge to readers and in this case the f t c is own expert discuss that open access model and stated that it was created approximately in two thousand and two and that it was codified by standard move in two thousand and three well before own eggs was ever on the open access model of the well established will no model journal published notably the f t c is expert also stated that under the traditional publishing  many of those journals also charge fees authors and so in this case there's a significant dispute over whether a reasonable consumer receiving a solicitation to publish in what is clearly described as an open access journal would not understand that that means that publishing fees aren't all and the f t c argues that it's presented some declarations of people who say that they were surprised by the theory that they didn't know that if he was going to apply but again this is a situation where we have more than sixty five thousand articles published and i think the court said it best in the publisher's business services case that's a twenty one s a nd  evidence did you put a stop to well things are virtually never get to step two because and analyzed involved in this representations and then extrapolated that to a larger number to find somewhere between forty nine percent and sixty nine percent princes and misrepresentation you know except that evidence is true and she was not confusion was not misled by this and that you satisfied with her experience they also presented evidence that there was it was the combined refund and chargeback rate was approximately one point seven percent  t quite low considering the amount of business being done in this case if everybody was truly misled you would expect that number to much much much higher than that and so in this case there is thank you your honor is and may it please the court marielle gets for the federal trade commission the district court absolutely got it right here when it granted summary judgment in the commission's favor and i'd like to just jump right in addressing your honour's questions the council's representation some of which are absolutely wrong so i want to be sure to clarify that with respect to the impact factor claims our expert joyce backus testified that that specific term impact factor in this community of academic researchers refers to the specific thomson reuters measure of a journal's reputation there is no evidence in the record anywhere that the term impact factor means something other than that dr good data asserts that there are a number of other metrics that other companies use to assess similar things but there is no evidence that any consumer in this group would have understood that term to mean something different but as your judge hunsaker pointed out i think she really put hit the nail on the head when she said even if the court were to be troubled by the term impact factor and whether there may be a dispute of fact it doesn't matter here because each of the categories of false claims that the f t c has asserted independently supports the judgment here so even if you set aside the impactor claims it has no effect on the verdict because under the f t c act all the commission needs to show is that there was a misrepresentation that was i would agree that there is a theoretical difference between the journal revenue and the conference revenue in this case however the defendants never produced financial data that separated out the journal revenue from the conference revenue in any consistent or reliable way so even if for example your honour's wanted to make some sort of the docs into the award for certain category of claims for example the conferences there isn't even a way to do that on this record and it's because of defendant's own failures in not coming forward with financial data that could possibly support that so i'm sorry so i guess i'm going to jump around a little bit that survey was designed specifically to be conservative so to be under inclusive as far as capturing misrepresentation so what the survey stands for is that at least sixty percent of the conference is being advertised contained a misrepresentation when the survey was conducted response is i don't know or i don't recall were excluded and in addition when  staff was figuring out who to contact for this survey if the e mail of the individual advertised in the conference advertisement was not readily available that was not included either so there's actually good reason to think that the true percentage of conference says that we're misrepresented could be well higher than sixty percent so it's a floor not a ceiling here and that's absolutely that's enough of  bases or were made in the very reasonable approximation every conference was fraudulent it is your honor and i want to back up and step back and look at all of the evidence that was submitted to support the conference claims because opposing counsel makes it seem like there was you know evidence about one conference that was misrepresented that's absolutely not true we submitted in the district court st hand testimony from four barcelona san antonio philadelphia and vegas so two of the declarant did testify about the same conference in barcelona that they registered for and showed up to and were shocked when it completely failed to live up declarant who attended that barcelona conference but there was also the declaration of julian hurwitz about eight thousand and fourteen dollars conference in san antonio that she registered for and paid for and later realized you know it was a sham  and there were or was also testimony from i'm sorry there are also evidence of other consumer complaints in the record even beyond the individual to clarence complaints that were submitted to the f t c to the better businesses bureau etc and then in addition there was a declaration from someone whose name was wrongly used in connection with a conference and that was in connection with the two thousand and three biology conference in vegas and that was eric everett so it is not the case that there is only evidence that one conference was for represented and that's really what the survey was designed to show that these misrepresentations about participants in the conference were rampant and widespread and importantly no makes didn't come forward with any evidence to show anything else to show that there was anyone who ever attended an all mixed conference and found  live up to the way that they had advertised and i think that's an important point to make so they were required to have substantiation for the claims that they were making so if they're out there claiming that prominent scientist x is going to be speaking at this conference you would expect them to have some sort of documentation that nothing of the sort was produced so there is a wide range of evidence of a submitted on the conferences to answer your honor's question about was this a reasonable approximation of on just revenues from the defendant absolutely it was and i want to be clear the defendants the appellant's admitted that the specific amount used from their tax returns for the for each year that added up to the fifty million dollars they admitted that that those were accurate numbers so any effort to say that that was not  right it just can't be squared with that admission but more importantly if you apply the two separate burden shifting framework for calculating monetary release that was accepted in commerce planet and which this court has applied in several cases since then and i'm thinking of the a m d case c s t v versus gordon among others these cases are very clear that the the bar for what constitutes a reasonable approximation is a fairly low bar and really it is in cases like this where it's a direct seller selling to consumers with no middleman there isn't some sort of legitimate product or stream of revenues at that  all of mixes business activities are encompassed by the f t c as claims here in that situation it is perfectly appropriate to use net revenues as a reasonable approximation and that's what we did here and then the burden shifts to the defendants to come forward with some sort of evidence to show that actually that overstates the amount of harm here and that's where are you following my hypothetical i and it doesn't describe this case because we don't have that separation here but perhaps i could direct the court to to the am g case which is where one where the f t c when we put discreetly advertise it's not like what advertising goes out for every company you're going to do because they're afraid of right your honor and we the commission in the district court in discovery asked for information and data that would allow us to parse out revenue based on each conference and the defendant simply didn't produce it so this is exactly why multiple cases emphasize the fact that to the extent there is some sort of uncertainty in the record keeping or in the numbers the risk of that uncertainty is borne by the the wrongdoer the defendant not by consumers not by the commission so i think about the answer to your honor's question is that it just wasn't possible based on the information that the defendants produced to splice and dice the financial data down to an individual conference level but my nd point would be that would have been their burden under the burden shifting framework  honor they did not and to come back to your earlier question about did the defendants come forward with any sort of alternative formula they came forward with a sensually nothing they pointed to the single declaration of dr or  which doesn't say anything about how much she paid for heard article to be published or anything about money and that and they made a general argument that the hypothetical group of customers that may have published multiple articles with a mixer attendant registered for multiple conferences but there was no actual evidence that there even was a single repeat customer in this case much less you know significant number that should be the revenues from which should be deducted from the monetary relief award so there was no alternative calculation but forward this court has held time and time again in cases where this happens that  it's defendant's responsibility to come forward with some sort of alternative alternative calculation the court talked about it in commerce planet in an g there are others too so i think it's a really important  point and one that just underscores why the fifty million dollar number to the extent defendants have any objection to that it's really because they didn't come forward to meet their burden under the two stepford fifteen framework so so there was nothing there was nothing offered in the district court about that i just like to conclude by going through a couple of things that opposing counsel said that i want to be sure to clarify we've talked about the impact  factors the peer review evidence again the the now assists of the peer review files that showed something like fifty percent had no root no review at all i want to be very clear that that does not mean that the other fifty percent received substantive rigorous peer review in fact there is nothing in this record no single piece of evidence to show that any article that own mix published actually received a substantive rigorous peer review and that is the kind of peer review that they were claiming they admit that that's what they were claiming so i think when when counsel said you know we didn't show that each and or systematically to these articles that a mix of publishing so i'd ask your honour's to affirm the district court's grant of summary judgment and also the equitable monetary really forward  you just over three months if your honor st of all with regard to the edible monetary relief the problem here is that there was no two step process involved the f t c automatically assumed the entire net revenues were equal to and just misrepresented and somehow for i think it shows that indeed not similarly with regard to the period you have to see of course in the nature of the entity that it is is going to see things when people complain doesn't see people don't complain when they're satisfied with the process and so all of those peer review issues where the author was satisfied if you're you is not simply not going to come to their attention needs and so with