jalili did you want to reserve some rebuttal time i did reserve three minutes if you want to please i mean that i thank you the district court's decisions below in dismissing the case fundamentally misunderstand the protections that are afforded by the consumer protection act in plaintiff's home states those acts like consumer protection statutes across the country are modeled on the federal trade commission act they're intended like the federal trade commission act provide protections against unfair and deceptive practices in the sale and marketing of goods and services and they are intended to reach not only direct sellers but rd parties that engage in marketing activities either for or with direct sellers and the acts provide this broad relief and that's what this relief is called it's broad relief changing the traditional common law restrictions on how consumer protection liability could be applied they create new statutory rights these are rights eliminate traditional elements of common law causes and replace them with broad remedial protections precisely what it is sure the the and the statutes differentiate between unfairness and deception the unfair practice in this case is marketing a product with statistical data that provides a key component of of the product that is corrupted unreliable and prevents the exercise of skill by contestants in the fantasy baseball games  what i don't understand that at all the statistics that are used by drafting are the districts that are the official statistics of major league baseball and that's what their represent what is what is the problem the problem if you want to please is that the contestants in this in these games are told that this is a game of skill that is based upon their ability to use knowledge and judgment based upon just a statistical performance of players and you can tell us but but but baseball has all sorts of cheating and always has anyone who thinks they have understanding baseball statistics know that there have been players who used for baths there are teachers who mark up the ball or use the ball there are players who use their eyes or other perform rather the sport have various ways of trying to police these things but st of all if they don't catch the perpetrators them those different forms of cheating if you will affect the  and if they do capture them so much for your skill if you have predicted that a player based on past performance is going to perform above his historical value in the coming year and that player then test positive for steroids and bam you lose in the competition if that player gets into a feud with his manager and gets bench that's what as far as you are concerned as a predictor and that's all baked into the sport and anyone ought to know that so why is this particular form of cheating somehow different has everything that you've just described and i understand that question and for all for those of us who who have lived with baseball of course that is an issue but there's a difference here in this case everything you've described is a player cheating and either being caught or not being caught or even in some cases a team cheating and being caught or not being caught that's not what we have in this case we have in this case a league that is alleged to have have known about the cheating alleged to have let it continue secretly knowing this is the this is knowing so what that's what happened with the steroids epidemic as well that over his years everyone in the world knew that some players were cheating and baseball liked it because there were lots of them runs and nothing was no effort with really made for quite a long time to practice now again you're talking not about and partly but what of what happens in the world i think that the players had no knowledge that major league baseball was systematically allowing electronic sign stealing knowing it was going on knowing it corrupted the statistics and selling or participating in the dollar what would be the difference if they knew there was science deal even with out about trying to get everybody knows that there are ways to steal signs teams can steal signs from the rd base coach runners on nd can still sign him the catcher pointed out everybody knows that so what what's the one who's playing fantasy baseball would understand that there's all kinds of will violations that occur that that meet with the league's knowledge with the waves knowledge with everybody's knowledge that's not a that's not a that's the manic electronic sign stealing dramatically changes the fairness of the game yes there are individual instances of sealing a sign from nd base or a rd base coach sealing a sign but what the what the allegations in this case  and the allegations are supported by public admissions that the the astros for example electronic sign stealing which was done systematically was reported to major league baseball and major league baseball in the mischa league when it was reported by the open that le they can hold your honor in a different or different status the case law is very clear on that no more direction than your client i'm sorry judge it would be more direct consumers of right than then your guess but that the ticket holder cases hold that the ticket holders have nothing other than a license to attend the game what we're dealing with is a product that major league baseball is hoping to market for millions and millions of dollars of revenue and millions of millions of dollars of equity equity  increase in their interest in draft kings and and selling that knowing that that cannot that people cannot use still because the statistics are being regulated by that you mean by they  want to argue that that's a system were fair but here's why it's not true it's not true because if i'm picture and i'm pitching against the astros on day one my statistics my statistics are going to be  negatively impacted yes and not suddenly and suddenly there's a downpour that day and the game is allowed to continue in the rain the pitchers perhaps going to perform differently than he would have if the sun had shown luck of the draw i mean it's but isn't this whole issue of game of steel simply a legal fiction it's up with the marketing of this as a game of skill is really a way of saying it's not gambling for legal purposes and that either makes sense or it doesn't it's either the law or it's not but it really has nothing to do with what makes the game fun when banks the game fun is an art like any other day that you can't predict the outcome going into it i don't think you can call it a legal fiction because st of all in order to be a lawful it has to be based on yeah exactly exactly this game of excuse me game of skill is not something that says just what if you're the smartest baseball guy in the world you will win and if you're not you will lose a game of skill is a term of art under the law d and the the qualifies for it doesn't and that's a different story altogether  your claim then you're claiming that this is a game that if the o f d m were allowed to play he would win every year because he is the more billy being or one of these guys would win all the fun because they're the smartest the fall guy and they don't win every year on the field that is exactly evil and out in the world doesn't win every year in business history that that is exactly by the way that major league baseball argued to this to the new york general assembly and to other general assemblies they presented peer reviewed studies showing that that the players win by skill not by random chance that the data shows that the more experienced and skilful players are the ones who overwhelmingly win and that well that the difference judges the systematic nature of this and and and the and and how this effects completely not just the extras where as a team performance but the opposing players team performance and when players pick their fantasy teams they're unable to make knowing decisions because it's not just one injured player it's it is a raft of teams it's all teams and it's who's playing home how do you skill if you have no if you don't know which games are being which games this is happening in which at bats it's happening in it at home games is it away games it's not there's  signs doing that it's to conceal injuries of players by team matters a little bit absolutely just because this is this is every hitter on the team at home being given the pitch look at major league look at the outrage among major league major league players curt schilling said this is rigging the game is this case any different from the mayor of the dollar check rd circuit case i know that was a ticket holder case but the reason in that case and there was a fraud queen in that case as well was similar as judgments pointed out that there are all types of violations of the rules it's understood by everybody so how was this case different from that one because the net effect it said we shouldn't nd guess a weeks and for some of its own rules is because the whole thing in that case turns on the fact that when you buy a ticket or you have as a right to a license a license to sit at a game it's not it's not a separate product that you're paying that you're paying money to compete in one of the key components of the product is not fairly constituted it's theirs that it's this is yes obviously this involves baseball but the product here is a separate product fantasy baseball that major league baseball markets and sells markets and helps trafficking sell for enormous revenues and if you and it is i think a factual issue whether it's a factual issue whether people would think these statistics are fair it's a issue whether people would put would participate in may in in fantasy baseball contests if they knew about the the electronic sign stealing if they knew that that major league baseball was concealing electronic sign stealing that's what the complaint the complaint alleges we would not participate if we knew about the electronic signs still and we would not participate if we knew that these that this was being concealed and that wasn't the rationale that the district court relied upon in dismissing this case that's their defense that's a factual defense and let a jury decide let a jury decide whether that factual defense is accurate or not i don't think on a motion to dismiss it well the judge district court didn't and i don't think this court in a motion to dismiss can resolve the disputed factual issues baseball players would believe it's a fair cop would reasonably believe it's a fair contest and it's an objectively it's an object already focused on what were the two main points of my my presentation one is that the opponents are packing an awful lot into the words contest of skill in his case and taking a long  rule breaking or at least will be immediately disclosed and i guess also a representation that there will be rules about this sort of thing i mean with respect to mr dog's argument that the difference here is it's a meager i guess condoning things don't forget that the rules of baseball baseball put them in baseball constitution says the commissioner will decide how these rules will be inforced in baseball may decide tomorrow that electric science tried sponsons no worse than regular s of the argument by the parents which you know judgment focused on is there are so many things that can affect the ability of a fantasy player to there is no negligent misrepresentation because there is no mystery mr hardman one of the other theory you're right that that is the primary focus but they do focus on statements by the commission about insuring the integrity of the game and i think that's a separate sort of predicate i guess for their claims you want to about even occurred with respect to the consumer protections that insurance and of course they get pounced focus on that because they probably have the most you know liberal pleading spirits but even there is judge livingston pointed out  commonality in the commonality is there has to be some just stepped up or unfair practice which causes injury and again this case goes because there is no deceptive or unfair practice and while i  licensing agreement baseball or somehow committing again to protect against known breaking i think that's that's a that's a pretty long rope between the alleged statement and sort of in the  commissioner did say back in october of two thousand and fifteen i know there's an issue of alliance on that but it was a separate statement by the commissioner in this separate statement by the commissioner is a statement in which he says that she was convinced that they cite to support all of their claims they're so much more remote apartment so much more direct in terms of the involvement between the fan in the minds of then you have your case were made the lead clip case where the  we all have our pet points in cases so i just want to say this eleven thing the points are surely have to show is lost the only allegation of loss they've ever made we've raised this everywhere we've we've argued is that they would not have the the themes to play in the fantasy contests had had they with about signs you know what they've never let is whether or not they actually want to games did they win the concepts and they make money on them and i would submit they would i think you're on is just a few quick points with respect to the game of skill that has become the focus on appeal and even during this argument the the agreement that the is the tie for the game of skill representation is in agreement only between and albion m l bama and draft kings neither the red sox nor the astros are a party to that agreement back to the consumer fraud claims that mr gallup has focused on there's only one texas d t p a consumer fraud claim that is made against the astros the type of product here involved them or affects them in some way that becomes part of the case and that undermines that person by the sea they may be very unhappy that they're involved in the face where they didn't do anything wrong or didn't aren't sued or anything of the sort so why does that protected so if there were a trial of the face in which this letter became a focal point of the th room would have to be sealed and no one would be able to no one in the public would be able to know about a fact that was  know why i'm saying your honor is that i say at the pentagon that i think under those circumstances it would have to be a lot of stages discussed because in france this letter doesn't mean anything once the judge in this case that it was related to major league baseball became relevant it should have been over the plaintiffs had this letter they never even utilized this letter of the the only big knowledge levin the reason why documents are classified as physicians documents is not about whether they're hopeful for one side or the other or not you know litigation it's not about whether the public would be interested in the yankees or not distinguish the two but as far as the point that there is not a presumption of what you're saying is the public has no right to know whether judge great was only out a lot in making the ruling that he made or not well is that isn't it easier to think about those considerations or deciding whether the strength of the presumption is that it should be outweighed by other factors rather then figuring out whether there is a presumption at all i mean has my discretion because he had already determined that it didn't matter what the accu weather said that was not any statement by baseball or trying to determine that his st opinion was irrelevant so no matter what that letter said no matter what any other statement by major league baseball daily basis of expert the expert selections and that's that is a very good example of how deception and unfairness is part of this case major league baseball if you accept the allegations of the complaint knew that the astros were cheating know that the knew that the electronic sign ceiling was going on knew that players that were playing for the astros would have been slated results know the players playing for other teams against the us to us would have worse results and nonetheless made recommendations made recommendations on a daily basis of other players that fantasy played fantasy contestants should pick that that is how is that fair obligations that emmott that m o be the m o v parties under took pursuant to the marketing agreement and they're on a daily basis with expert recommendations of players but they're but they're required and major league baseball tells the announcers who through a coming player or whatever as someone who should be bet on it's a major league it's a major league baseball production if you're on a place i don't i'm not saying i'm not saying you because judge the issue here is major league baseball is controlling that program whether or not the announcer knows major league baseball knows major league baseball has received the complaints major league baseball knows that the astros are engaged in this the astros know they're engaged in that and they're letting the announcers make those make those daily recommendations which mislead fantasy baseball players that's it that is exactly by the way whether it's i'm just i'm still trying to understand where the misleading  the sun no that's not what he says he says he says pick to naca tonight not that it's facing the the astros he'll do very well picked a knock at your player when when major league baseball knows that any pitcher facing the astros is going to be at home is going to be subject to the trash cans scheme and is going to have this pitch is known there's it's not it's not that they're saying pick the asterisk is it doing well it's because they're saying pick a player who's facing the astros or pick a player pick somebody other than the astros who's him whose performance statistics are going to be impacted and major league baseball profits from the fact that the them to see baseball player rather than the event it profit if it profits from marketing this product it profits because people watch those programs and go out and play draft kings fantasy baseball they can do it right from the n l p dot com website to the entry forms the this is it's it is the it by the way this is the marketing that is called for this specific detailed marketing that major league baseball and its clubs are required to provide ok i think i me there's no other application but i think the court should understand the actual sequence of events here the sequence of events was judge record had a pre motion conference with president bush and conference requirement we alerted judge raycroft that we would be filing a motion for reconsideration with a motion for leave and we had a conference at the conference it was discussed what was a new evidence of what evidence was was the complaint the new the new allegations being presented upon and fight the marking agreement identify the yankee letter this is an off the record conference it was agreed that what we would do was major league baseball would submit directly to the judge rake off all of  the documents that it helped that were confidential and then i would submit them in redacted form under oath the yankees by the way were not part of this conversation in their brief misc describes what really happened and what happen conference was judge rakoff said i want you to know i don't believe in these confidentiality rules i'm very likely to rule i'm going to consider whether these documents should say confidential we'll decide that later on then we had another conference because there was there was a problem with with actually their ceiling of the yankee letter that had to get worked out yet another conference the yankees were present at that conference because judge break off invited them the jet yankee said it should stay boston globe and hundreds of thousands of fantasy baseball players and yankee fans and yankee haters around the country at all come in and said this is a document in which we have i think the st test the st issue is that he abused his discretion and the answer i think is no i think the reason that people haven't come in based upon conversations people have called me and asked the press has called me i declined to comment about it the press if they hear from this court that they have a right to to to to go seek it the press will go seek it the press is eager to seek it and the press is especially eager to seek it because the yankees have chosen to make statements about the letter which could be strongest presumption of access apply to this document when judge recall had determined in his missional decision that a press release itself any statement about what tronic signs to him by the commissioner i baseball and and we but but even assuming that's correct judge the letter establishes other elements that are absolutely relevant the letter establishes when electronic sign stealing st occurred major league baseball disclose it as of the astros in two thousand and seventeen the court can determine whether that letter contrary to what the press really says in the case that something happened in two thousand and fifteen and that's a factual issue in the case when did it when did it start the letter also establishes this was denied by major league baseball and it's actually denied by the red sox in their brief that major league baseball whatever conceal anything about electronic s dealing and the court can decide whether on the issue of c enter whether what major league baseball elected to do viz of the of the statement on one day the press release issued the very next day whether major league baseball was in fact concealing intentionally electronic sign stealing those or those have nothing to do with the reliance issue and those have nothing to do with with judge requests conclusion