of actions or elements thereof the district court's order improperly ignores and or reshapes the well pled factual allegations of innovations forty one page second minute complaint further rather they construe infer the allegations as it must the district court instead engage in rampant impermissible fact finding at the pleading stage after dinner overview innovation's well played second minute complaint and the fact intensive issues of raises did the district court there in finding at the pleading stage that no reasonable fact finder could find a likelihood of confusion under the lanham act and that there is no possible likelihood of deception last did the district court error in concluding that none of the alleged conduct violated either the unlawful or unfair process of section seven thousand two hundred the california businesses and professions code notations and i trust feel that if we go really to the california basis seems to me so goes the federal claims so goes the u c l claim would you say that well i think the district court did not read well i'm really trying to suggest to you that i am not going to pay a lot of attention to state law claim unless you win on the federal claim somehow and i'm trying to see if there's anything in the u c l which would suggest that i ought to give better emphasis for the state claim yes your honor it's a looser standard under seven hundred to two hundred only because only restitution and injunctive relief is permitted no trouble damages or damages where the just report went astray on the unfair  claim is that you do not require an antitrust violation in order to satisfy the unfair prong in the celtic communications versus l a cellular case twenty caliph fourth at one eighty seven the supreme court explained quote the word unfair in section seven thousand two hundred means conduct that threatens an incipient violation of an anti trust law or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of law or otherwise significantly or threatens or harm to competition all right i got your idea i'm not sure i agree with that but i got your idea let's go back to the end i trust injury arising from the purchase are not claiming antitrust injury arising solely from the purchase it's the acquisition that gave j j wentworth and peachtree the seventy five percent market share monopoly but you don't believe there's any an purchase and i could move off that point not standing alone it's the synergy act all right so we've got to go to something else how about we go to and i competitive conduct the that flows from the and i competitive conduct a relevant market is the purchasing of the structured settlement payment receivables given this to definition which is the relevant market why in this complaint it we concentrate on the google ad words market well i think that this record focused on that the complaint al from frankly reading your complaint and reading what the district court did it seems to me there's more than one relevant market than google right well that would be one shopping tool distribution channel the most important is internet what as i read the complaint the market was and that's why i quoted to you the purchasing of a structured settlement payment receive a bulls from individual consumer sellers that says wide market yet what we're really talking about here is that google market and i am having a tough time seeing why we can make that if you will allegation when we have a bigger market that's relevant well as far as selling channels and advertising channels yes some quite imagine like klank could fly a plane with an advertising banner behind it but that's not help people sell their structured settlements as primarily shopping tool used is to go on the internet find people that will give a bed at take the best bed the highest bid understructure settlement and well but the real plain talks about a television market right it's not a very big market but that's what it talks about talks about other search engine markets as well brecht the foreclosure and nobody suggests that you're for closed from any of those other markets right learn the major markets we're talking about the biggest market is what we're for close from and not complete for closure there you don't require complete for closure in order to state and interest injury and we also allege that the page from paragraph fourteen of the second minute complaint it's the internet ads the websites themselves and print media put out by the defendant that causes the confusion the confusion here is the facade that they're true competitors that will give competitive bids when in reality they're the same company that i understand and i understand your argument i was just trying to look at the market i'm supposed to look at when i'm looking at the injury and the court says that you can you can get what you want by paying more and the exhibits show that you can get the top spots by paying more so why are you for closed well because they're monopolist and they spend twenty million dollars and that's not something the smaller competitors can do but that's one aspect any amount of money we want to spend isn't going to change their websites which does not disclose common ownership sharing of information why you couldn't we can get to the false advertising or that kind of a claim i'm only looking at all your claims i'm going and i trust injury arising from purchase that the group flows from there and i competitive conduct the next we can go if you want to the lanham claim well conduct is basically the saying the deceptive conduct forms the basis of the end of trust claim as well and to make the record player to the pound it keeps arguing on appeal that we're certain a predatory below cost pricing claim we're not so the court a straw man argument below that because you can't prove predatory below cost pricing you don't have an interest injury it's not a claim or even asserting how could you have below cost price you know on a bed for a structured settlement all right let's go to the false advertising claim it's my understanding that you have to allege a false statement of fact in a commercial advertisement about its owner and others product in others in order to have a false advertising claim right well the advertisement or the website just needs to be misleading confuse just a minute just a minute to determine the false statement william morris says plaintiff my show the statement is literally false hi there on its face or by necessary implication or how are their statements false on their face or by necessary implication well in the south led south farms case want to wait and third eleven forty this court explained that quote even if an advertisement is not literally falls relief is available under section forty three a day if it can be shown that the advertisement has misled confused or deceived the consuming public and that's what we plan in the complaint that the websites and ads are confusing the lead people to believe they're dealing with true competitors that are giving competitive bids when they're not ok so what you're suggesting is that you can plead this by implied deception and you're citing that case i'm not sure that case says that but i understand your argument so it's not a false statement of fact but an implied deception if all of facts are true then the only way this would be a deception is if somehow they should have said they were all owned by the same company correct that's what we plead to me it's no different than  four different car buying entities with different names you're going to car max you get a quote for five hundred dollars for used car you go down the street thinking you're getting a competitive bid and that companies also own by car max and surprise surprise you get another bid for five hundred dollars that's what's going on here well but just a minute here's what the district court noted ovations exhibits showing google's research results reveal the advertisements are clearly labeled as such the fact that the advertisements are saying is that where the alleged consumers or their advisors are dealing with structured saddle months that their last likely or their likely to ex to exercise a high degree of care and percentage and and therefore no confusion well this is a twelve b six motion the court had no benefit of discovery or expert him put i don't think the district court should be making those types of findings on a motion to dismiss on a blank record we've alleged that it was an ordinary consumer exercising ordinary caution not a sophisticated consumer and what's being done here is people look at structured settlements out of a personal injury case they win the lottery these are not necessarily sophisticated people just because you bought a lottery ticket and won it doesn't mean you're sophisticated and there again that's a fact issue as to who the consumer is here not something to be decided on a motion to dismiss most cases it's a summary judgment a trial and then you're looking at the standard of the consumer not in a motion to dismiss even the case the judge cited for that it's a finding of fact sometimes that was a summary judgment case typically likely to confusion and the level of the consumer are fact issues but there again we're back i understand your arguments the web site the print media and the ads it's not just the ads the court wanted to this report want to focus on the ads i don't dispute that an ad is an ad we're saying the ads are deceptive because they don't disclose to me it's the same as verizon advertises an i phone for twenty dollars an ad but doesn't bother to tell you to get it for twenty dollars you have to sign a five year contract that's an omission but it's a material one here people would like to know that when i'm getting a bid from peachtree all of branch and j j wentworth that the same company colluding on the b because you want to get a competitive bid if my client were to make you say they're not competitive bids if they are not corporations even though totally owned by the same but they're corporations out there in the marketplace which are in effect competing with each other though totally owned by the same we've alleged they're not competing that it's a facade that the shared i understand i guess i'm trying to figure out find that if you will the facts that under her lie that conclusion you've alleged we've alleged they all operate out of the same headquarters they have common ownership they use the same phones they use the same database when someone why why would they be different they're all owned by the same company they don't want to compete with the charter what were alleging here is there's a complete absence of competition because consumers are led to believe that they are competing when they're really not whereas of our client were able to get into the market they would give a competitive bid they give a higher bid not in all cases but we want the opportunity to compete on a level playing field not competing against someone who has a seventy five percent of the market and is using three different formulaic recitations look past the legal conclusions look past the unsubstantiated characterizations and figure out do the actual facts alleged support a plausible not just possible but plausible claim for relief and she correctly found that they did not and with regard to ethics trust injury she went through each theory that they alleged and famine theory they are either fundamentally inconsistent with an or there's simply no facts there to support it now once again no vacation has conceded that they're not claiming the acquisition a loan caused antitrust injury although in their briefs before this court they continued to focus heavily on the acquisition and even a way that they've waive that now so with regard to their mark now i try to go through exactly what their claims were in the first one as to the arising fact necessarily you can get it by so says the case and necessary implication but your honor this actually the stay the requirement of a false statement of fact is still an element what the courts have said is you can either show that the statement is literally false the statement is false by necessary implication where the statement is misleading and likely to mislead you still have to have a statement there is no statement in any of these ads that they can identify to say that it's either literally false false by necessary implication or misleading oh you're suggesting that simply because you  what you should have said that doesn't lead to the false statement well it's i don't think there's an obligation the should have have i would take issue of there but there is no one i mean that's what they're complain but there's no legal support for the notion that you can assert a false advertising claim based upon an omission a fact there is simply nothing out there and we have cited cases that show the opposite that an omission  fact cannot form the basis of a false advertising state claim because there is no statement and think about the chaos that would do but as to the deception when you don't that's what they're suggesting  rises to the plate and your honor what what has happened and the courts have come a long way from brookfield back in the ninety's in terms of internet advertising and this court's decision in the mall type time machine versus amazon case made it very clear that what you're looking at now are you have a difference in a ray of consumers and with anything you look at what is the reasonable consumer and in the circumstances what the ninth circuit explained in that case is when you're looking at expensive items in that case it was a four hundred dollar watch you can expect as a matter of law that it's a reasonably prudent sophisticated shopper that's what the court said as a matter of law it was factual dispute with regard to that and the court even noted sure you may have some people out there that are confused by it but that's not the focus the focus is on a reasonably prudent consumer and what do you do the court said you look at two things what is the ad show what are people going to see and what what are they going to take away from that here people can type in hundreds of search terms and they get different ads and the ad itself is not false or misleading there's no statement in it that they can identify as false or misleading and there's no obligation to disclose the common ownership so what they're trying to do is bootstrap on that this well we think you should tell everyone you're commonly owned and because of that it must be false and misleading why don't they spend their time and money instead of litigating this case running advertisements and say guess what  peachtree all of branch they're all the same company come shop with us and you'll get a competitive bid that's what they should be focusing on that's what the night circuit explained why false advertising generally is not a anti competitive and has  three three chances here and the and i trust the injury the court really knocked each one out of the park she went through methodically and explained why there isn't any and i would i do want to come back to the market foreclosure issue that judge smith you mention the other you hit it on the head i mean that first of all they have to find the relevant market we had to accept that as as true for purposes of the pleading in the district court as well it's the market for purchasing of structured settlement payments it's not limited to google's ad words program it includes as their own allegations very clear television radio internet search google being yahoo everything where people can search  for and they are the ones that have focused solely on google so they have no factual allegations that they've been foreclosed from any other aspect of the market and with regard to google there they simply come comes down to nothing prevents them from bidding more to buy the top spots what they're really complaining about it's the same thing the supreme court rejected in brunswick they're saying you know they've moved past the acquisition but hey we now have to compete with both j g wentworth and peachtree we shouldn't have to do that because if there is an acquisition peachtree should be removed from the market and we shouldn't have to pay as much because now we're one less competitor out there will know you can't complain as a competitor because competition was not reduced and that's essentially what they're saying there's companies like a new a t dot org that pop up as the top spots and these are ads that they ran and they selected and district court recognized anyone can obtain and there willing to pay for it that is vigorous competition and as cargo bay it's clear it doesn't matter if we're able to do that and pay more as a result of the synergies because of the acquisition that's besides the point because that's competition and they mentioned predatory pricing we've never been the ones arguing for predatory pricing they have made references to predatory pricing and bidding in their complaint and with the district court properly did it she said look predatory pricing is the type of anti competitive conduct which a competitor can show an interest injury from so if you can make out a claim for predatory pricing go for it and that would get you past it but they didn't but they did they did it and they can't and they admit they can't and so when it comes to the bidding or pricing aspect what the supreme court made clear this court has reiterated is when it comes to pricing the only anti competitive conduct is predatory pricing that's the only thing the atlantic richfield case made that clear and so you can't complain about others pricing mechanisms by a competitor unless you're focused on predatory pricing so the fact that we may be paying more for these beds and we may appear more frequently in the top spots doesn't create antitrust injury on their part fine with regard to the consumer harm issue and the district court properly concluded that they cannot assert consumer harmison a basis for their own interests and three post acquisition  correct and but even more fundamentally that the notion that a competitor can claim and i trust injury from consumer harm has been repeatedly rejected in soundly rejected for good reason the courts don't want let just dilute the any trust injury if consumers are actually getting fleeced the way that they claim they are they are the ones that should be bringing suit here but there isn't this consumer harm that they're making it out to be why because the legislatures from the various states have set in place a regulatory scheme for the sole purpose of protecting consumers every transaction has to go through this process every transaction has to be publicly disclosed in court filings a judge has to make findings of fact a number of them there's a whole list of disclosures a statute requires with regard to the rates that are being treated the pric the terms it has to be in plain english so people can understand it and that it in this situation is this are all of these settlements they all need to be approved in california yes including those that are for people who are of age yes there's and if you do not get approval or have sufficient capacity they all have to be approved they all have to be approved and there are significant penalties if if they're not approved in addition to avoiding it so once again what the supreme court teaches in the trunk oks is that when you have a regulatory scheme in place courts need to be wary not to impose additional an trust liabilities are on that because there's been a decision made to regulate that field already and the regulation here is to address the alleged consumer harm that they're complaining of it works fine and if they have an issue issue with it it should be taken up by the legislature and not before a court it under the guise of a competitor a finally with regard to the state law claims since nothing agree with you that the standard that they do rise and fall with regard to the unlawful prong of the celtic case makes clear as to be an antitrust injury or an incipient violation of one that's no different than the federal standard with regard to the fraudulent standard but they have to show a false or misleading statement and tendency to deceive which they haven't shown questions or there's anything else you'd like me to address i will surrender the remainder of my time thank you thank you rebel oil fifty one f third fourteen forty five strongly pronounce it because quote because the sherman acts concerned is consumer welfare and interest injury occurred only when the claimed injury flows from x harmful to consumers as to the omission can never be a lanham act violation they're relying on a district court case from the sony universal betamax case from forty years ago and if so that this court found in the it off your bass your bass case in the second circuit opinion and other side of footnote twenty three of our brief all talk about it does it you can have a false impression created from omission dicta so we have put know twenty three lays out those cases and then what we're seeing is the unfair competition claim the unfair problem does not require a violation the lanham act or the anti i hate the consumer harm that that is a requirement for antitrust injury and we're not complaining of any pricing in this case it's not price levels it's not a predatory pricing kay case the complaint here is market for closure to innovation and a reduction in competition because consumers are deceived into believing that these three are really competitors so when they call up the first two or three they stop there they never get to my client or for close from the market thank you counts names thank you to both counts of the ca