representations that even marcus made could only be viewed in terms of a comparable value comparison under the c f r two through three three point two and not at all as a former price comparison i think what the it looked to me like the district court missed was the context of the representations and also the fact that the name of the store is a representation that plays a role in the way consumers interpret these the statements about the prices you have the store name neiman marcus last call which obviously contains a temp oral component it sort of suggests that the items in the store have been sold previously and here's your life is going to suggest that i'm sorry why does that suggest that well i think you know the reasonable consumer test is well a reasonable consumer i didn't see anything in your pleadings about any test about what consumers question what makes me think in reading this complaint that that's what consumers think just because your client thinks that well well your honor i mean where is their alleged in the complaint anything except  bare allegation that reasonable consumers are misled it seems to me that what you're suggesting is because your client think she was and all are but if i look at all kinds of other complaints in other cases they always go get some consumer information maybe even do a survey maybe do something else that base that frankly bases these ideas that you're alleging in your complaint i think that's one way to do it your honor i've been before this court and other matters where the complaint didn't include a survey i think that's our most fair i'm not saying surveys the only way but just alleging it a bear allegation is not enough well you know i think under the reasonable consumer test when faced with these types of representations i think it is an objective leap reasonable response to what you're seeing all but do you i mean my my worry is and i've looked at the reasonable consumer test my worry is what facts are there alleged in the cake case that buttress reasonable consumers were misled under the circumstances that but chris what outlet stores functions are i mean you suggest what an outlet stores function is but i don't know why that's true in fact when i read your complaint i said that isn't what a knowledge store does at all it does quite something else and so then i look to try to find out why do you allege that and i couldn't find it did you go look at what neiman marcus says outlet stores ought to do are you go look at what neiman marcus says reasonable consumers should necessarily think that that would be a way to get your allegation and i'm trying to say well no that's not true so i looked around there were no ads or marketing material that was put in here all we have are tags to ta well i think in some ways it's a gluten switch right it's saying come to the store that's neiman marcus last call and when you actually you know when you actually go to purchase the items i don't think it can be disputed th consumers base their purchase decisions on the price and whether or not they're getting value or get a set of every shape that so so that then i've got to find that this price tag somehow misrepresented the issue here i think is that the consumer is going to make the purchase and the price tag says neiman marcus the name of the store says neiman marcus last call so they're misled into thinking they're getting a neiman marcus quality product when as the and therefore they're a part of the name and marcus and just because they have neiman marcus on the top of the pack doesn't mean that they're absolutely going to be in an even market store just means they were manufactured in the whole neiman marcus our operation and there certainly are in this store now i realize what you want to say but i got nothing to back it up that's what i'm asking what do i used to back it up you know i i've been on cases before this court rub interpreted interest rate disclosure in the series she did but if there there was a representation which was made the representation i read of the case it was made higher could read it i could read what it says here i've got two tags and don't say anything except neiman marcus i mean i get them out you got them too but i just i'm trying to say if i have t i'm going to plead fraud or mistake i have to cite with but her peculiarity what it is and one of them is how and i'm still trying to figure out how i get to the how in your complaint think i hope that i can address that your honor and i think what it is is that this is a case i know there's a lot of references to marketing materials advertising the representations have been alleged it's a very simple fact it's  you determining what the representation is are and me buying it or you could allege read was black and i'd have to buy it and then decide the case based on that high you've got have some background that's what i'm saying that's what while calmly is all about that's why i'm asking you about this and i think what i consider that is just it's just frankly that i think that's a  objective and the reasonable interpretation of being faced with this situation in this outlet mall shopping store you think and again it's the distinction between the name of the brand name on the tag which is a critical representation consumers are making purchases do you have any representations in the complaint that your client made any effort to see whether this product was offered for sale anywhere else in the vicinity of the outlet mall and i don't believe that's in the complaint because i mean part of the problem i have with the words compared to it's compared to what your argument is it has to be compared to neiman marcus flagship stores because the label says neiman marcus on the tag and this is the last call store but as i understand the law if you can't show that you might be able to survive with a viable claim if you could allege that it means compared to like quality products offered by other merchandisers in the vicinity journo and i think on that issue on or the c f r two three three point two he puts the burden on the seller to you know information regarding price representation if it's a compared if it's you can't discover your way into a viable complaint helpful i think that the question is you know what do we have in your complaint that says even a minimal investigation was made to see whether or not like quality products were offered for sale by anybody else i'm not aware of any other allegations in the complaint on that subject of the comparative value comparison argument with with regard to two three three point two the district judge had a problem with the fact that your client alleged that neiman marcus was quote not certain close quote to the compared to prices and without addressing the other specifics in the complaint it seems to me that those types of allegations are close to what the district court jacoby over says ross stores from two thousand and six thirteen dismissed on the grounds that uncertainty doesn't raise it to thirty three point t verily violation or two to thirty three point two doesn't you've got to show more than a lack of clarity to get over that that bar what allegations or if you haven't read what sort of analysis would you offer the court to distinguish what went on there you know i did take a look at that chicago again you know i think i think from the opponents perspective  because the statute specifically puts the burden on the defendant you know under nine the there's a relaxed standard if it's something that you could determine journalists covering for example we got documents that said you know these you know if they plead their complaint here and there were three different opinions written were essentially the judge gave the plaintiff the opportunity to read plead gave him a roadmap told him what he needed to plead and the problem here is that all we have is an allegation that there is a place to has to prices on it has the words compared to and it that she didn't properly allege harm but in the district court for close that but i read in the second amendment amended complaint that ms rubenstein allege she quote relied on neiman marcus as representations and would not have paid as much if at all for the products but for neiman marcus is misleading advertising representation this paragraph one thousand she also said she quote reasonably relied on the large price differences and made purchases at the quote neiman marcus last call call close quote stores  believing she was receiving a substantial discount on the exact same product that she could have been purchased a traditional nique even marcus flagship retail stores for the compared to prices paragraph fifteen i mean she goes on and paragraph eighteen  paragraph fifty two and asserts i think with fairly good specificity that she shopped there and that she relied on the advertising and representations it would seem to me we could take this standing argument off the table by simply acknowledging that in her second amendment amended complaint she she alleged plenty of specific facts in those paragraphs to demonstrate that she had an injury in fact right well let me respond to that by saying three things first are you and primarily is that the plaintiff failed to state a claim no representations when there was a price tag well but the upright but but you've got to look at it in context and i think that counsel has a point when he argues that it just says neiman marcus on the label as last call store which strongly infers that this product has previously been offered for sale at a flagship store and has now been dramatically marked down and she's saying i relied on all of that thinking i was getting a really good deal and i paid the last call price for the product had i known the true facts i might not have purchased the product at  all it seems to me that's sufficient for article three standing under the case law is it not well it may well be given that i have to accept her allegations as true for article three standing well i'm not going to stand here that is the one i simply i just made reference to i have to in a motion to dismiss acknowledge that all the allegations your opponent makes in this reason is this grilling or first under the promptly standard the plaintiff must plead sufficient facts so that a judge can reasonably conclude that the claim is not simply conceivable but plausible and that's exactly what the judge cried do you hear he said you were telling me that because of the name of the store and because a price tag that is plausible for me to believe that you were misled into believing that this particular item was the exact same item that was sold at the flagship store at the higher price that's not plausible under the circumstances where he went further than that he said that no reasonable consumer would interpret that compared to price as a former price comparison and i have a hard time accepting that given judge smith observation that we have to allege as true her allegations that that's what she believed  that's what she relied upon and that's not an implausible argument to be made given the context in which these goods were offered for sale use what is implausible test is what would a reasonable consumer conclude about the price tag but why not why isn't that an issue of fact that the jury's going to have to decide because i frankly disagree with the district court  needs to do is make a determination as to what a reasonable consumer might conclude from those facts that was the tax and this would have been here's what it did here's what it did what it said was i have the obligation to determine using my commonsense in my experience one and number two what i'm going to do is the plate at this point me to the c guidelines and the f t c guidelines are prepared by a government agency to clear guidance to both consumers as well as  businesses and to their rights and responsibilities and so i am going to look at those guides to deceptive advertising to make a determination as to whether or not a reasonable consumer would view these price tags in a particular way but would you concede that if the evidence showed that those guidelines were violated that that would be sufficient to trigger the protection of california's broad consumer protection  probably if they were violated but but they were not that's the point the point is that the only thing that plaintiff could point to here was you compare to language and the said i'm sorry that's not the former place that you were having a hard time with all respect for a very able district judge i'm having a hard time understanding why given the presumption that all of the plaintiffs allegations are true that the only reasonable interpretation of compared to is something that's not entitle to any deference that's rude continues even though the neiman marcus label appears on the tag as opposed to last call even though the name of the store is last call even in the face of two different prices on the price tag i mean you really are saying no reasonable consumer could look at that tag and think this particular article of clothing had previously been offered for sale at one of the flagship stores and now we're blowing it out at our last call store at a substantial discount well what i'm saying is the federal one is the defendant can show that this good in fact was offered for sale at a flagship store for some reasonable period of time not for six hours you know from midnight to six am but was offered for sale or wasn't done he was misled here or you can go out into the community and see if there are other competing merchants offering quality of equal quality and offering at a higher price which wasn't that you're ok that those are the two ways that would make that a bonafide marketing practice but if in fact the good has never been offered for sale at the flagship store and if it would be reasonable for a consumer to assume that in the context in which the good was offered for sale then how do you that the plaintiff survive on a motion to dismiss i mean you're going to have to get to the summary judgment stage trial in order to show that the consumer has no case here i think not your honor i think what to what it's compared to the point is that it's not simply ambiguous the only thing that you can say is the plant could say this is the way i interpreted well th compared to what this article was previously offered for at the flagship store or compared to what the competitor down the street is offering a similar product for at a higher price but  responded that it has told you what compared to me compared to when you can see that if the discovery showed that it was neither true that the flagship store ever offered the good nor was it true that any competitor in the vicinity offered the good then that is a false representation because it's a comparison to nothing other than two numbers that are printed on the label the point is that this case never got to  substantially reduced to blow it out of there and that's what her claim is and the only reason she raised the issue about reasonable certainty of language is because the judge center i'm sorry the price tags are not  explain whether or not the more easily consumer it is that let me rephrase that than as a matter of law no reasonable it would not be plausible to believe if your reasonable consumer that this good had previously been a a line of questioning which he wanted to have counsel respond to but when i read your complaint i don't even see anything about the standards of the f t c or the discussed in the complaint and i'll go where where i mean i'm trying to figure out where you're going to say because i read it very carefully and secondly even if how do you make your case even if they were discussed because you've got to do more you've got to plead you did one of the two things the judge tolman is suggesting you needed to do and i didn't see that in the complaint your