dealing here with a sale of a gift card to consumers in the ordinary sense of all those words and we end up with a case dismissed at the trial court based on what we believe was a stretched statutory construction and now which of your two claims are you talking but i think i'm going to focus my argument on the tip and claim your honor which is the truth and consumer contract warranty and notice that claim so is it your position  i guess what our position on that is we personally believe that the law is clear and it's a matter of statutory construction we believe that the appellate courts in new jersey that have looked at this have been able to interpret this and the one case where the issue was actually brought to the supreme court was the basel versus one of the guards case and it was certified on a different issue and they did take issues related to the take when the claim but if the new jersey supreme court that being said  the new jersey supreme court wants to weigh in on this we would love to see what they have to say about it but we think that so what does that mean does that mean you're in favor of certification or not in favor of  certification i guess that we believe that this article court has the tools before to make the decision in the statutory construction and the legislature of new jersey has made it clear and the question that was just asked them if you please because i interested in knowing what your position is are you in favor of certification or not yes i'm in favor of it ok thank  to to help me out with something you say that there is no authority for the defendant's assertion that the district work properly limited property dot com and they pulled up this thing on the screen and they printed it out they had a candle piece of paper just like a gift card you get from joseph a bank or macy's that they can go into a restaurant and use this piece of paper to get a discount on a follow the district court's argument new jersey law says that someone holding this are typically if they tried to exercise it use it  in the second year as the law would say you can now i'm wondering whether you have any of your clients or the reported class you did a class who have attempted to exercise that right in year to this property right and have not been able to do that because if the answer is no then i wonder what you know what's the last appreciate  question none of our clients attempted to use it afterwards we don't know about the putative class because we haven't gotten there yet ok but the question that you're asking judge when it greenway a plea goes to the ascertainable last standard on the consumer for that which i think is different than the to put a but to answer your question under the consumer for that no one argues i think that under the gift card act which is a specific provision of the new jersey consumer for that that this is a gift card that's covered by act i think no one also argues that the gift card facially says that it expires after one year except in california or otherwise prohibited by law the issue on the ascertainable last question i think is a very simple one our position and that is really simple at the time of purchase you're given to guess a typical one that facially says it expires in one year and one that facially says in accordance with new jersey law that expires two years which one do you buy if they're both put at the sale what do you pay for either one is one not more valuable than the other can we say you agree is a matter of two sort of economic sense that when it comes to having rights having them longer is better than having them shorter that's it our point john and i believe that we could present that this is a motion to dismiss that we can present it well  with expert to present that argument that if it's true that a longer shelf life is better than a shorter shelf life and your clients bought something which on the face of it said you only can use this for a year but it turns out that new jersey law would let him use it in the second year aren't they how are they worse off what would be the what would be the last associated with finding out he wait a second i got another year on this thing well the question is how do i think you can free a basically a free year that they hadn't expected to get well no your honor i don't believe that to be the case and i'll tell you why it's happened to me i've had gift cards that was sitting in my drawer that somebody gave me and when i picked it up and i read it they said oh i got this two years ago it expired last year i take it and i throwed in the garbage there's no that's the whole purpose of this to going to stacked it it's misleading on its face ok well let's listen as the customer never knows that it's still usable let's let's not cross pickwick and fraud thing for second sticking with ascertainable laws which is an economic concept if you get a year that you had not paid for because you thought you're getting one year and you got to isn't it a fact that you have no ascertainable loss in fact you haven't ascertainable gain by virtue of the operations statute i understand your question but i don't believe that's the here your honor because i believe if you somewhat if you found out about it i believe and i think the boston case actually dealt with this at the supreme court level of new jersey consumer fraud in new jersey happened at the time that it purchased it at that point in time that's when you are entitled to the damages and the consumer for that hold on a second let's take it out of gift cards for a second to say this is one of those the one of the car cases and the person buys a car and they think it's got the bad aluminum manifold i turns out it doesn't it's got a way better one and it's going to run for five hundred thousand instead of two hundred fifty thousand miles it your position that they could go to court and say i thought i was getting a crummy your car you gave me a better one now i'm pretty man of the product on me i mean to get an extra year on the gift i don't know i'm i understand you took on a point which is they were told about it but keep in the side for second just a matter pure economics how are they worse off with an extra year if there's action in fact an extra year which we don't know at this point because i think that's a matter of discovery right now you have to go into the restaurant to redeem it we have no idea if after a year they sent judge green away his position if the rest  actually redeem that when facially says that it's expired and if that's true then they got what they paid for it they understood they were getting a year and they got a year which was a per se violation of the consequence of the consumer fraud act because the consumer for that says you can't sell a gift card unless it has with an expiration date unless it's explanation expiration is beyond twenty four months so there was a person a consumer fraud violation at the time of sale because if facially violated the law if they can't redeem it after a year because the restaurant refuses it then they have all but that's a different point a different point from ascertainable wason juncture right that's a technical violation of the words of statute that you well the awful act in this case is the technical violation of the statute under and the cox versus yours it acknowledged that when there's a specific statute or regulation problem probably gaited on the consumer fraud act that at that that a technical what you call a technical violation but it's  you would buy at the point of sale that all you of a card that facially says this is good for only one year when the law requires you to tell them that it's good for two years his less valuable had the correct information or that the president will do i understand your position to be that if on day one here client purchases one of these gift cards he can immediately filed a complaint in court saying i'm entitled to statutory damages and so are the other three million people who got this you're already under the help too of our complaint the truth in consumer that you represent have ever use this year to pick it in any way or form i have not said that your honor i believe that miss shelton has used most if not all of her question before the court up there are other more important reasons why minute and i appreciate the accolades that you paid to this court and that fact that if we were to come to a conclusion on even count one or count two of the plane just complain you is the law is not unsettled well what we what we make of judge wolfson saying in the are can't case for example a new jersey courts have been cherry to ascribe the term a precise meaning the term being ascertainable loss and there's a district court judge sitting in new jersey wrestling with this thing in the well the case saying hey the new jersey courts really haven't spoken all that clearly or so well how how do we take your statement that it settled with her statement that implies sure well i think what what judge wilson was talking about was the concept of ascertainable loss in a consumer fraud context and what she was y the question that i'm just in it donal just a moment is i read your grief and i realize we're skipping back and forth between counts one and two but as i will break your grief you spend a lot of time and a great deal of effort settled as well well your honor i was of directing my come up there to judge jordan's question with regard to our ken which is a consumer fraud violation case and getting back to the question of  certification if the court is considering certifying a question to the new jersey supreme court and that question is under the t c c b when they with regard to what is a consumer contract or what is property then i think there my point was that that particular issue is not unsettled in new jersey and like this have agreed with that the plaintiffs have never disputed that the issue was unsettled and in fact all of the sessions house it's subtle your brief is the one that says hey the plaintiffs can't point to any case that's ever said that this type of thing is property and they say well the defendants i mean there's no case where it hasn't been said that this isn't property if there is no case on either side how can you say oh it's settled we've got a statutory language we've case that applies it in this context what's settled well because the the only reported decisions in new jersey law and new jersey deal with the t c c w n a in terms of what is tangible property those are all reported cision from the appellate courts in new jersey and you supreme court right so the logic that you're pressing on this is this because no decision because no cases ever come forward yet on this that means no case could law in new jersey does not mean it's appropriate stop when you say doesn't comport with the law in new jersey let's be really specific they say the statute says any property you say yeah but it says any property with this modifier on it no new jersey court has spoken on whether that modifier covers intangible property not correct that's correct ok so i just i'm i'm i'm puzzled by the assertion that so but let me ask you something else when a coach you from page eleven of your opponent's brief they cite the statute and that's what i want to speak to specifically here it says no consumer contract notice or statement by the legislature that you're not allowed to do what it looks like restaurant not comp did the disagree that what what restaurant dot com did is outside of what the statute says you're not permitted to do the last mission that was presented this is simply not a question of of general importance that typically would be certification would be granted and it's our view that and the key consideration is whether it's an issue of public importance this is not an issue that is likely to recur i think you heard from the plaintiffs kelso quite clearly that this isn't a case where we have pla going i don't think anybody's disagreeing with the idea and i don't hear them disagreeing that they could use what they got their assertions are that new jersey statutory law gives a certain rights and we were deprived of those rights by the actions of restaurant dot com not that they didn't get some benefit from what you your client sold but that they were deprived of certain rights that's that's what i take their argument and your argument was evidently being developed at the same time eggs and moss was coming around to say that look it was understood to sort of have the same kind of limitations that's how interested at the level and i write about that's correct that specific language with which the plates of suggest would have covered the situation here to give certificates here the legislature would have included it in the d c c the way this is directly to your honor's point just jordan and that the fact that the legislature did not include that in the p c c didn't they reflects the fact that they believe this type of certificate is type of intangible  nature just like all the other cases that i've talked about this mcdonnell that i want to take you back to something that you say and you may very well be right about this that the new jersey supreme court if indeed we determine that it should be certified might not take this might not take this case but you said that they probably wouldn't take it because it really isn't in a court case and it doesn't present in court issues and what i'm concerned about is that the statutory remedy if multiplied by the number of people that the plaintiff says it should be multiplied by we might be dealing with the five or ten million dollars statutory right now i realize of course that the mere fact that it is in the millions doesn't make it important but i suspect that if we terminate to certify this matter and before you would leave before your opponent  would ask that you submit those questions that should that we should seek certification on so that we would have a basis for but i can't believe that something that could multiply to be extent that this could in terms of dollars is really all that minor and on important do you and if you do why are you fighting it so hard if you're only out of a five hundred bucks it seems to me that you would have paid the five hundred bucks and you would be here today but you're talking about general public importance in the sense that what types of cases the new jersey supreme court would be interested in this case is is it was not as not important enough for restaurant dot com but anybody who's in the business of marketing something intangible you know i definitely agree that there's there's an important issue there in the sense that the way in which the plaintiffs are are using this statute and off tense of way using this statute as a shield and a weapon as a weapon i mean you're the whole opening of your brief is all about it's a weapon  you start your brief on the statement of what's at issue here by saying here are people who and i'm paraphrasing you know basically you never know they never use this and had a problem with it it's our it's our go back and read it but your whole point is what are these people complaining about nothing except their statutory damages that they claim to have and it's statute and and i think the implication of that to be g third circuit if you find for the plaintiffs you shut down people like my client you'll shut down all the gift certificate intangible right folks that there are if that's really the import of your argument don't you think the new jersey supreme court might think shut down whole industries in jersey is something a public importan if given the choice of i mean yes i believe that would be an important issue however what i'm simply suggesting to the court is we believe the law is relatively clear and that there was no error below by the trial court in determining that what was being purveyed here by restaurant dot com was simply a right to a future discount from a third party who was not conveying property in the normal sense there really is no deed to import in meeting from either the recent statute which goes directly against the plaintiffs or the default definition of of property which includes real property and in a sense is therefore directly conflicting with the statute so the heart of the hardship we've got right though mr ekdahl is you seem to be saying to us this isn't really a matter of public importance if i win but if i lose my client loses then it's a matter of real big public imports and i guess we can't look at it quite that way we've got to look at it is is it a matter of public importance or isn't it right i understand the dilemma from the courthouse amending correct by the district court i but don't believe he said anything like that in the his decision your honor that i can only but i just want to really make one port point and i want to refer to the the definition of property and consumer interpret a consumer is really the driving force and the modification of any money property or service by personal family and household use is really the key part of the definition of consumer they want to exclude business transactions commercial transactions between businesses and clearly michelle to mr bo house and all the pewter class members were consumers in the normal sense that they were buying this to go to a restaurant to consumer meal with their family and friends or whatever and that's what the focus is and that's why if you look at the first part of it any money property or service was a non conference employed scope and i think the way we have to look at the definition of property is the recent case of smith that we presented to you on you know f that was decided after we brief this case actually help shows to important issues as help the pulp division in new jersey as you broadly that took in a statue one when there was phrases and terms at issue in that case where it was an order of the deal or doe deal or selling a warranty that was somebody else's but the seller when there were terms that were not defined within typin a they went to the general provisions of new jersey statutes annotated section one and they went there to look to see how do we define these terms and they said well these terms we have the if we find say that they're not the find here that seems to put to quinn in its more ordinary circumstance right somebody's going to a car dealership warranties in major not made here you've got us looking at a circumstance where according to your own argument earlier the very day somebody buys this whether they understood completely what was going on or not they've got an immediate opportunity to say to sue and you put a whole bunch of people together with statutory damages and you can sue the heck out of these folks so that the isn't that isn't the upshot of your interpretation of this law that purveyors of gift certificates either have a thirty page disclaimer with new jersey like pastor they don't do business in new jersey well i wouldn't quite put it that way you want to but i think in the next thing typin of the legislative made it clear that they didn't want these type of contracts in office made and let's look at it we cited united consumer financial services which also cites to the basel in case now three of the three published decisions that i know it wasn't the purchase of a car that was issue of the tick when it was hiding a undisclosed documentary service fee which isn't a product in the norden every sense the dealer charge them when they got their title or magistrate and they charge of an extra twenty bucks that they didn't disclose and there's a regulation that says technical regulation that says if you're going to charge a documentary service need to consumers in new jersey when you sell a car you have to disclose it and itemize it on the face of the contract and in that case the court said well that's a clear violation in the mere refereeing of a contract that had a violation on its face was a violation that was cited with authority in not a consumer financial services where the underlying product that was sold was a vacuum cleaner but the issues were techno with took when it was violated there was the contract which said if we get a return check fee for if you check his return for any reason then we can charge you twenty dollars and all these things are going to be spending some time talking about but you could assist us in the following way if you would each some time and i hope it's not pushing you too hard to say within a week sent to us if we were to certify questions under this case your formulation of what those question when that what that question were questions would be ok recognising that you if you change your mind to say we don't think you should but if you do this is what it would look like and that that gives us something to work with ok yeah oh good point it would let's it would be helpful if you in the first instance try to work out a joint submission and if you can't do that at least tell us you know we worked on it and this is what we could what is the issue like us to address the question of circulation on the issue of the few c w a well we're putting it to you you tell us if we were to certify under this what you think would be should be certified or all right ok