grant for the panels de novo review of this matter appellate c three principal issues to be addressed initially whether the anti tying provision of the magnusson loss warranty act jersey act wrote this argument to save some time and hopefully for some clarity if that if it is a clearly established right there the procedural hurdles of recovering damages and of the mag and and i'm not sure i understand clearly established any better after that reading than i understood it before are are we to read clearly established and the basel and opinion is really stating that it clearly established right is really just coextensive with every other statutory right that can't be  but your honor i believe that can be but then why would the legislature go to the difficulty of using the term clearly is that established especially in light of a backdro of this clearly established term of art that at least exists out there extensively in federal jurors drawn or in the context of using clearly established the question comes to not whether the it rights that has been established to protect consumers is that the right we're talking about yes right or it is do we have to dig down further to ascertain the specific right  as it relates to the facts of this case i think you can address it on that right but given the violation for instance if there was an inclusion of a violation of the magna some awesome warrants yakked be antitank provision if that was included in the warrants you at issue here you could look to cases such as doogan in cats which are cited in the briefs and that could arguably constitute an unconscionable commercial practice of the consumer fraud act if that's what your judge fisher affects your question i still are there other avenues that could plead a violation of what i guess to get more jersey i guess the more specific where were has a new jersey court said that requiring someone who has a warranty for a theft system to use the credit that they get under the warranty at the same dealership where they purchased the original vehicle where have they said that a person has a right to take that money and go anywhere where on i think that that's a start with the new jersey court has not said that no court has addressed that ok so that issue has not been addressed it has not but it is codified in the statute and whether the facts of this case constitute a violation of section twenty three zero two see is more of an issue for summary judgment down the road the new jersey courts have been very clear  but why isn't the fact that the specific issue here has not been ruled upon why isn't that as a matter of law and not clearly  well i think it that the issue comes to whether when the facts are developed if the the warranty contains an illegal provision i mean the new jersey supreme court has jersey act and i think the confusion lies in if you're looking to determine the clara a clearly established right if the violation is clear to the offender that is not about whether or not there is a violation and whether or not there is jurisdiction and whether or not you have to prove damages or a cure is signed and put aside all that for just a moment why haven't you advocate in your brief and in your argument so for a little perhaps your point that when you want to certify this case to the new jersey supreme court we're under the our local rules permit  certification which they have agreed in the past to certify cases because that would give us a very clear definition would it not as to whether or not this was i agree completely your honor in the sense that i know this court has recently done that in the shelter matter which was just argued before the supreme court of new jersey and yes and yes and i understand that that avenue was available but my understanding is that it's court rules that you have to have an injury to have standing where does that leave your case well your honor it would create some challenges to my case in some respects but as i don't think that ends the analysis  john i don't think that that ends the i'm allison under the circuit's decision in allston first countrywide which is five eighty five f thirty seven fifty three which judge fisher i know you're familiar with having been on that panel under that analysis there that was again a respite statute very similar and actually was part of the underlying basis to the ninth circuit's decision in edwards which was currently argued in november under your quote under the panel's analysis essentially monetary damages was not a requirement for standing under article three and essentially the violation of a right was actually found there to to be part and parcel of article three statement so long as it was concrete and particular is no that is not a violation if you work to use and why not because it doesn't you don't actually say you have to come back to radio shack in your example no one says you have we'll give you a new radio if i was mistaken when i spoke with a new radio shack radio so you don't if i the brand name you come back and they're required to spend money at fifty percent off of the radio there the off would create a violation of the timing arrangement because in that circumstance your honor the radio shack is providing the good and has what would be a direct financial select a honda or the consumer to go back and select the honda at that dealership spend over ten thousand dollars after purchasing the warranty i think that that fits squarely within the timing arrangement where as  the radio shack example there is not you have to go back to that you have a defective part you have to go back to get a replacement part and you know you're totally right and replacement will give me your warrants a product the your radio shack example is the radio the warrants a product in the ibex is the etching under the definition of replacement under of the mag some also warranty act it is a replacement plaintiffs have promised a state law claim on a federal statutory violation that does not exist has never been recognized anywhere and no american business nor its attorneys could have surveyed any of the case law the statutory tax the legislative i did with mr parrish the meaning of of basel and we are required of course under our precedent to give consideration to the decisions of intermediate state who works for purposes of determining state law questions and we do that with intermediate state who are its give them their decisions weight in the absence of persuasive data so we have which would seem to cut against your position on the statutory interpretation here can you point to some persuasive data that oc to dissuade us from what basel and seems to say about the now well i think basel and your honor actually falls in line with the cases the remaining cases that plaintiffs themselves cite as demonstrating clearly established rights because what happened in basel in is that there was this document terry fee just a twenty dollars fee tacked on to this product when you had this new jersey statute the auto sales practice registry act that precluded undisclosed fees so like in so many of the other cases they their clearly establish right to be free of undisclosed fees and that's what binds all of their cases together your honour's to the extent that there has been found a violation of the new jersey statute there has been a clearly established right and an actual violation of that statute and here what makes this case so unusual is the predicate statute magnusson mosse warranty act is so undeniably not violated in this case that they have never even challenge the dismissal of that claim because at the end of the day magnussen lost does not prohibit ties it prohibits first just harmful and unsure and ties in its undisputed in this case that they cannot make out those elements of magnus and ma so if we return to the new jersey statute the term right clearly established right has to have some meaning in this context where we have a civil action brought by plaintiffs and it has to mean that they have a cause of action a claim that they can force  at law just for clarification you're not taking the position the law that bob dylan is not offer a plausible reading of these things i think it does offer a plausible reading of the statute your honor in so far as the right in that case was number one clearly established and there was a violation of a very specific new jersey statute and by the way no party has found any case where this statute has ever been premised on any violation of federal law and certainly not a violation where the federal act itself requires elements that plaintiffs undeniably cannot meet so if we turn you know in our view your honour's and i think it's important for us in our clients to point out that we didn't violate federal law here this warranty is not a tie anyway even if we take that it's not there for a second visual the motion to dismiss that and what could be more clearly established than a federal law under the magnusson moss warranty act the congress said that to tie in products to a warranty is a violation of the act and that's what's alleged here your honor i agree that the plausible claim here and i you may eventually win this case but at this stage we are just troubled with why a federal law couldn't be that clearly established right and i understand your concern your honor the state the unusual difference about this case is we have already won on the predicate statute and the win is so convincing for it's not even been an appeal from the dismissal of that claim they there they could not in the agree they could not because they didn't even replete it established a magnuson last warranty violation so while i agree with your honor that if there are factual disputes about whether they can establish the predicate statute then frankly we probably lose it the motion to dismiss state but the question of whether or not this what this warranty violates magnusson moss has been resolved and concluded and there's been no appeal from that resolution which is again you know if we get back to the point of magnusson mosse your honor to try to prevent  interest from doing what they used to do tying the use of the warranted product to other products and services that are not provided to the consumer the stereotypical motor oil example the only real federal case in this area is the apple litigation case where apple tied the use of its i phone to applications that warrant out work that weren't apple applications in every other aspect of this law the f t c is opinion letter the regulations etc they are what i'd call classic ties ties where for instance the says we warrant neither parts nor service from a designate the the service facility we warrant parts but not service and i'm going to designate the service facility because there is a direct linkage between a warranted product in the use of a non warranted service or product here that's not the case at all that is the critical difference your honour's is that warranted products cannot be tied to other products and services here the credit that goes toward the replacement of the vehicle is the very benefit provided by the warranty it's not trying to use of the product the product here is the register that we've never said in any warranty or otherwise that they couldn't use any other product or service that they desire in connection with our product however to use the benefit they have to return to the originating dealer and so we know from the f t c is opinion letter the only authority on submit your honour's that's ever been it any i know again i know that it's not binding on your honor's of course but it's highly persuasive in so far as it points out that the performing the very service promised under a warranty is not using a service in connection with the product or your time at the f t c later yes or on the two thousand and two letter in now i know plaintiff's argue that c was simply wrong there but it's an alice this is right on with the statute because it draws a distinction between tying to the warranted product and putting conditions on how the benefit of the warranty may be used in here at the credit toward the replacement vehicle is to use the f t c is language the very service promised under the warranty it's just like a fifty fifty warranty and this is that that's in the letter as well and it appears elsewhere where a warrant or says i'm going to provide for a car for instance fifty percent of the cost of parts or service to the extent that you need it it can therefore designate the service facility that you have to go back to because it has a financial interest in which service facility you go back to this gets to jud respectfully we would reduce no i you know what yes ronald we would your honor because we don't think it's necessary there has been with one minor exception no legislative history of what clearly established means but it is the that the legislature used i think that that is a matter that this court sitting in diversity could interpret how another court would and would construe the terms clearly established and no matter how broadly that term is construed as judge some mandal found on part because that's where most clearly it appears in our cases and that's what he focused on the don't you think that perhaps the statement or an opinion from the new jersey supreme court defining what fairly established means in new jersey would be helpful well but again judge i think that this is not something over which  reasonable minds could disagree i think clearly established means something more of an established however wherever we draw that line it means something more than a stablished in the right here isn't even a stablished because there is no case anywhere in the country suggesting that a partial service warranty like this is a tie there's no c f r there's no f t c opinion there's no basis to suggest it's going to stablish so i don't know that we would need the supreme court in new jersey to weigh in on the precise definition of clearly established you know there is legislative history your honor of that term it's not a lot but it says that it means that it's something is not subject to reasonable disagreement which is a common sensical approach to what i'm sorry where is that legislative history there branches of the government it is a most significant thing to us then you can you supply us with that when i was absolutely your honor absolutely and it simply suggests that is my name is mary co hart i'm here for the what we call the pad defendants which are the automobile dealership and its parent company i'd like to start by simply saying this the the issue of whether or not the statute the magazine must violation is a clearly established right i think should not be certified to the new jersey supreme court largely because we don't need to argue over whether it's clearly established simply because it's not  d at all and this is a federal statute and we had a federal judge reviewing the case law it's not as if the trial court was analyzing new jersey writes under new jersey law they were analyzing rights under and can be used actually is of limited help to is it not in the terminal what the the intent of the new jersey legislature your honor and i agree with that and i was actually referring to the underlying right itself that is at issue in this case which is whether there is a right or an obligation by the warrant or that or magnus and moss not to have a warranty of the nature that was at issue in this case i understand magnussen moss says what it says in federal courts interpret in magn and i don't debate that at all however i do point out that the the case under new jersey law did in fact involve something that had been clearly deemed unlawful under new jersey law which means it's  or maybe kind of addictive quality to what the court said because they were not struggling with an issue where there was no prior regulatory or judicial determination that conduct that issue was unlawful so to that extent we  may be reading more into the boss of decision than that court intended when it comes to something like this magnussen mosque claim where the warrant tore and distributors such as penske dealerships had no basis to know that it would be interpreted to challenge the warranty benefit itself because this what is a challenge here is not anything tied to the warranty this is the actual benefit the warranty benefit is a credit towards a new car and it's no different or no less valuable than for example fifty percent off a new radio at radio shack or any of these other sorts of warranties that don't have benefit to the consumer unless the consumer is willing to say purchase the same product again or b tires at the same tire distributor or all of the other things manufacturers and distributors use to limit their liability when it comes to a warranty and with all due respect the boss in case i understand it says what it says but you have to keep in mind that my client is not in the warrant or here we had no obligations under madison moss from the get go and if the new jersey statute what does the new jersey statute in the new jersey statute if and less would clearly appl really i absolutely agree that that is the case and it is to my way of thinking that is yet another reason why i don't think the boston court intended to say to mean clearly establish just any  legal right because this is a penalty statute there are penalty damages and if you if you a it's going to apply to people whether or not the underlying legal obligation belongs to them because i agree with you your honor that is crystal clear in the statute it would apply to a lease on the face of things to companies like automotive dealerships even though the underlying right at issue would not apply to the dealership in this instance because we are not born tor under this product it was an aftermarket aftermarket product that we offered as a pass through to our people that walk cars so to my i think that a careful review of the boston case would lead one to believe that this is not necessarily they did not use the stablished language in that case to cover situations where the underlying legal obligation or right was not well established in the law and this is just such a case because paris you have a bottle the section twenty three zero two c and if that was the case there would be factual issues that need to take is to discover you know essentially summary judgment i'd like to ask you and i perhaps should have asked you had this yours as  demonstrated the absolute nature of the warranty benefit and the lack of direct financial interest by the warrant i just want to ask you what that and to the equation here and how those facts mi assist you in getting past the motion to sort of to put on that initially the facts read it in light of touch the mandals underlying opinion relating to severability that was the only reason i don't necessarily believe that that analysis  see you can't do it without charge and twenty three or seven says provided that the warrant for said provides for the chart so the lack of payment harmonizes those two provisions and number two your honor is in smith versus vanguard dealer services to new jersey  decision that is unpublished however of percents the exact issue that present this court in that case and it's cited in our briefs i can provide court with a cite of course if it would like at this moment but it was decided on december twenty one two in that case your honor the court held plaintiff's complaint state of the claim where the any time provision was the clearly established legal right concluding quote we have no doubt the smith's allegations against ross s suggest a cause of action for violation of violation of the new jersey act your honor so there is guidance for this court to go by while unpublished there is guidance for how the new jersey court sees it i welcome the opportunity to brief it to the new year or to brief and argue before the new jersey supreme court because i believe that if the court looks to the decision cited particularly page twenty two of appellate opening briefs and twenty three you'll see that it's very consistent as how the courts have looked at th judge smith when your first question to me was about and about whether all statutes work to be part of it and i believe that is what the new jersey legislature in the jersey courts have intended a reading of jefferson alone for  standard about notice isn't that contrary to canons though that strongly suggest that legislative bodies don't use unnecessary since they don't employ terms that add nothing state or federal law it's the judgment of the state point in the one of his opinions about a means to be more than a pro hoc i'm sorry the actual language is escaping you but a pro hoc recognition by a court somewhere because that wouldn't be clearly established but here in this case you had that because you had the federal statute upon which to rely your time is up mr parrish let me ask judge garth if he has any additional questions i do not