the main issue in this case is the court's granting of the twelve b six motion but i would like to take some time to also discuss the class certification orders including why this court can and should review those orders post baker vs microsoft with respect to the twelve the six motions the first issue is the standard under which the cour evaluated them in the briefing there's some discussion about whether there's abbott contends that there's a heightened standard under the lanham act their only case that they cite to regarding the lanham act is the cleary case or something to that effect which just basically just saying that the lanham act is similar to the u c l we don't disagree with that point but then if you look were clearly says inciting some cases then is that they're similar because the standard davidson versus kimberly clark case that was recently issued by this court now understanding that to be the standard the district court committed error when it essentially turned  its head and conflated standards of pleading and proof the so we understand that a plaintiff suing a food manufacturer or anybody who's making an advertising claim a private plane if cannot merely sue and say well you don't have evidence for your claim only the government has the authority to make that kind of claim so when a private plane of comes forward they need to have something to back what they're saying they can't just say you don't have evidence but as revealed in the kwan case that we cited that was another recently issued a decision from this court that can include just the plain of saying i bought this item and it did not work for me and that's enough just to not be making a prior substantiation claim here in this case we did much more i contend made a quote and misquoted it or left something out or he had a little dots and little dots you know the lips and stuff are not right we could not do that i agree think and the district court had the ability to you can actually look at the sense of the thing that's the guy you know to say well there's a sentence and supports where you have to look at the whole thing and see whether or not the report in fact supports you well let's look let's look at exactly what the court said here there's there's four studies at issue and the second a matter of complaint and not look at the whole report to see does the whole report in fact support you well it's not that easy in the case of a scientific study just like we lawyers have years and years of training to parse through opinions and understand trends in the law scientists read a study and they understand what the language means and they understand the weight of authority just like we will do that with a with a series of cases and two what development if you're saying they can lock and they have to get it right this record can look in the right that i understand that you can say this record looked at that and got the wrong misunderstood the study but you have to agree that the court can look at the study and make an assessment as to whether in fact supports a complaint well if if we misquoted something out of context or again misquoted something then they just took or can look and see well you're saying this study he says this but he really doesn't say this but the district court here did way more than that the district federal court that's at bat in cases all the time you're going to well i assume that in that situation there's experts and things we weren't even we would i contend that this is what the district court did here would not have been proper even in a summary judgment situation but keep in mind we're only at a twenty six stage in the case and all the all that was required was that for the district court to see if it was plausible that it was like that the claim was likely to deceive based on the evidence and it did far more and i want to want to walk through the court through the the studies keep in mind there were studies cited in the first amended complaint which the court improperly concluded that there was no building of strength but what the district court here did this is it said well people there were weightlifting well they were taking this product and what the claim is on this product is that it helps rebuild strength actually lost over time and you can't take a study on elderly people who might be doing some strength training and take that conclusion that it doesn't work for those people and say that it doesn't really help rebuild  lost over time that was stretching it too far the study says it doesn't work and i don't understand how a court is qualified to say well you know just because the study was on young children doesn't meet means that it doesn't apply to adults where how what was in the record and what were the qualifications for the judges to say that that study doesn't possibly suggest that people are likely to be deceived it's not there the court just a usurp its own judgement for the judgment of a scientist about whether that would be probative of that the next study was the europe before you exhaust your time on very interested in why you is brought to certification and plaintiffs lose certification and they decide they don't want to spend the money to take it to trial because it was a class case and maybe the individual case isn't worth that much they voluntarily dismissed the case or stipulate to dismiss it in some way with rogers yes and the supreme court you did no no not so we're here let me let me walk you through that is the first second the court the district court here in addition to its improper reading of the studies our case in a way that we never applied it we said it was false and misleading and if you read the appropriate standard which is likely to deceive we gave ample evidence why it was possible that it was likely to deceive the district court though in its ruling on the second minute complaint made an artificial distinction of the literal falsity branch of our case and a deception by omission branch of our case that is not the way that the u c l in the seal or a work and that is not what we play we prejudice and while we're here it is important that the court review these clusters if occasion orders because she the extent that the court made legal errors in those orders they're going to a but the only thing that speculative is what they might do with it that waters exist and unless this court reverses them they're going to exist and have the potential to impact the case i want to bring up another case if  we were to agree with you on the literal falsity claim in remand could you re raise the issue of close certification well i certainly intend to do so but my concern is that the defendant or the court says well i've already ruled on materiality i've already ruled on flipping the standard about who the burden of proof is on a so what you're telling me is you could but you think you're going to lose well i'm concerned that the district  will just say i've revisited this and i think that the court made for the reasons discussed in our briefing aired in deciding materiality an area violated stearns in  falsity back but the district court would rule in the way you just described i don't know so your position is take care of it here well we're here and i was i was also going to say under the cohen vs beneficial life ca in our papers the court also has a collateral order doctrine would permit the court to review these orders i've taken you over your time thank you denied the twelve b six motion for most of the case the only fish sliver that the district court granted a twelve b six granted our motion to dismiss was in so far as he was pleading a literal falsity theory the district said that's out of the case that this report left him proceed with his claims that it was misleading or deceptive or confusing the district court has recognized that when you bring these kind of a claim there are two ways to look at it one is to say is it literally false and in that narrow subcategory of cases the plaintiff is relieved of the burden to show reliance that then you can also have a theory that it's misleading or confusing even if it's not literally false the only thing that was actually dismissed here was the literal falsity component so it's a little bit usery we have jurisdiction over that yes your honor we do it's a little bit confusing though because my colleague gets up here and says we never even plead literal falsity claim well if that's true then they didn't lose anything in the motion to dismiss it's somewhat confusing why they seem to think that that helps them to say that because the only thing that really the district court dismiss claim over which there would be jurisdiction because everything else they voluntarily dismissed was this order dismissing their claim in so far as it pleads literal falsity and i think it's very important understand that piece of the puzzle to understand the whole pleading issue because obviously whether or not something is is plausible under it both wamsley really turns on what the claim is if the claim is a very demanding claim then to say that you do to make it plausible you need more than if the claim was a much more open ended claim and i think that's the trap into which they're following the district court only said this is gone insofar as they are pleading literal falsity so if they are pleading literal falsely that's where it's an unambiguous lee false statement either on its face or by necessary implication and the district court said when i look at these studies that you have cited in your complaint and i accept the studies then it goes back to the point the district court recognized that he had that the second amended complaint cherry picks the sides and i think this is really the heart of the case that they come with some language and then they said well you can't look at the next sen report certainly cannot play scientist in the sense at the twelve and six states in the sense of the district court can't say well i disagree with the methodology or i don't think it's the right population but the district court can certainly at the twelve the six stage just take the study on  face and say well counsel you quoted you know this sentence here but you didn't quote is the next sentence it's very much like in the not in fact there of the fuller study it cites some very general sentence and th keeps out the next sentence where it says but we did observe strength increases even in this study population so you can't cherry pick and set and then say oh no the judge at the twelve the six stage is is precluded the judge a judge can certainly look at the four corners of the document that they have put into play by citing the document as they did here in their second amended complaint and what the judge here did is said that this was experts kind of case of the judge said it is i'm reading your sentence here but what you don't acknowledge plaintiffs when you are kind of trying to artfully plead is the next sentence actually says well we actually did observe strength increases and so i  n i think this case really boils down to kind of a pretty straightforward application of it voluntary wobbly in the context of a literal falsity claim where the standard already set by the substantive law is a very demanding standard and a gain just to i can't reiterate enough how important is that the court left them the bulk of their play in the court and left them their whole misleading deceptive confusing claim until they themselves voluntarily dismissed that to pursue this appeal but the only thing that first to bear and fuller are really one study that was conducted by the same people and they what they did is in the initial round in bayer they were looking for increases in muscle and they said we did find increases in muscle we didn't notice any increases in increases when you account for vitamin d there were strength increases in people with the normal vitamin d levels which were also recorded as part of the initial study just not when they were vitamin d deficient the other two studies and be a basis for saying you literally falls it could not be a basis for saying it's literally false with respect to the population at large and the district court let them have a eighth let them pursue the theory that it's misleading with respect to people who are vitamin deficient i think it can't be literally false if it is true with at least a statistically significant number of people i think that's the kind of line that you draw between literal falsity and and misleading by implication as to if it's true only as to one person then i think it probably could be but i think that they don't deny that we the people who are vitamin d warming is not we're not talking about one point any of these studies attempt don't know that the studies got into that the plaintiffs have said that about at least a third of the population of this older population is vitamin d sufficient of course this product has vitamin d in it and the other studies that the and the f s opinion are both in exercising adults and those are both studies that said we don't observe any increase in strength in people who are already exercising regularly think that it's just it was an observation your honor i don't think that for literally it's a critical component but this is a product that also doesn't give the vitamin d i think it depends how low somebody is deficiency is that frankly the product itself make your it with this product as a whole helps you only if you are already exercising it doesn't work for non exercising adults with in the second amended complaint the plaintiff change the theory to say revering reading alone this h m b metabolite does not increase strength so the as opposed to muscle mass so when you look at the studies that pantheon study in the opinion those are just saying that it doesn't increase they didn't notice an increase in strength in people who were already exercising but that doesn't really speak to the question of what about the people who are not already exercising and in fact the only evidence that was played on that was the the fuller study which which actually were against was on the face of the complaint so what microsoft ok with respect to that whole issue are we think it's pretty clear that after microsoft that the whole class certification piece of this thing is gone that became moot when they voluntarily dismissed the the claims seeking to bring a misleading or deceptive claim it's a little bit different than microsoft in the sense that we don't deny that there is jurisdiction over something we don't deny that there is appellate jurisdiction over the piece of this case that was previously dismissed against their will in the second american plate that narrow a literal falsity component so unlike microsoft in the other cases in that vein those are cases where the entire eclipse yes your honor we do agree that so what we think the one thing that they can't do is ask this court to review the class certification orders for this other claim the deceptive slash misleading cla that's not properly before this court because that whole claim is is gone now that's the price of admission that they paid by choosing to abandon that and concentrate to this court so they made their once narrow sliver of the dealt with abbott's affirmative motion to deny close and sort of occasion that they asked to certify that question were in a market to repeal yes you're on a boat they filed twenty three f classes and then they sought rule twenty three half appeal from this court and that was denied and then they followed this tactic of voluntarily dismissing everything in the case that they had left in order to try to get this this appeal today so i guess i'm not sure what they're trying to get but whatever it is it has to be for literal falsity has to be an ambiguous and clear and it certainly can't be if it is true with respect to a large portion that it's important to stand that these kind of claims by their very nature are not individual warranty claims you can't state this kind of a claim just by saying it didn't work for me you really have to show that it did it didn't work for the reasonable consumer it was deceptive to the reasonable consumer so you know i get i think the key point here really is that these that the district court is not only allowed but required to actually look at the studies or a study or a contract a lot of times people come in they plead oh you know paragraph nine of a contract well then the contract is legitimate to look at and the court can say well now i've seen paragraph ten there were certainly nothing that requires the court to accept their characterization of the studies and all the court did here on it says look i need i'm looking at the study and i'm saying that what you're proposing to characterize a study is a wrong characterization a study there's no battle of the experts because the court doesn't say i think the study is flawed i think the study is you know not probative just saying i'm looking at what the study purports to do and it's not reporting to do what you're saying it does so with that i see my time is almost up and i appreciate the court's time and would like the court to affirm thank you thank you are you a understand what the differences with the claim here let me walk you through it we pled that it was false and misleading now it's false because all the studies say this ingredient does not provide a string benefit the european food safety  authority indisputably said there was no causal link between h m b and strength now the fuller study he wants to say that the fuller study was not the the court acting as a scientist but counsel just used the word what the fuller study said was we observed strings gains in the vitamin d sufficient aspect of the study population but an observation that strength was gained by those people does not mean cause ation and that's what a scientist would understand in looking at that now i want to point out one of the things so counsel said well all that was dismissed was a literal falsity claim with the ruling on the second a complaint that is not true if you look at paragraph forty three and seventy one we said in addition to the fact that all these studies conclude that this ingredient does not cause a strength gain the fuller study also observed that a potential reason why there was no finding of strings was because of a lack of exercise and because the vitamin d issue and that's played again in paragraph forty three and seventy one the court only permitted us to go forward with the vitamin d issue so there was deception by omission claim on the exercise issue as well as well as a literal falsity so ultimately what the court really did was it wasn't just that it said you can't have literal falsity you can have deception by omission