please the court roger heller on behalf of sam and sam market is a small mom and pop shop and as you may know it's very hard for them to make it and you have this company come in taking advantage nickel and dime in them and now this company ignite payments wants to have it both ways it wants it so that this amendment imposing the trans armor service is effective but then it doesn't want to have to live with the promises that it made in that amendment the district court ruling requires reversal for multiple reasons first the district court did not address the claim that ignite breached the amendment here the complaint in this case alleges multiple breaches of the amendment including charging twenty four dollars a month for something the amendment clearly said would be one thousand dollars a month very clear breach also not replacing certain fees with the transformer fee as the amendment had promised this was alleged in our complaint it was addressed in our opposition papers and neither of nor the district court ever addressed it in substance the only basis for dismissing that claim was section one thousand and eleven or the so called notice provision which brings us to the next error that two the section would need to apply to every type of charge at issue in this case and three it would need to be the case that sam did not in fact provide written dispute notice within sixty days if any of those ca tearaway than the claims are not barred and we think those words so we certainly argued that the clause did not serve to bar any of the claims and we we didn't see this as something that needed to be affirmatively pled in our complaint so we didn't plead it that way but we told the district court was if that's wrong if that's something that we needed to do we could do that so i think it's true that on that point we may not have argued in those words but the gist of what we told the district court was the exact was was really the same with respect to other provisions of rule nine why should we undertake the review of such when it wasn't wasn't before the court well i think it's in compas within the arguments that were raised even though it wasn't raised district court or anything like that but let me let you go on with your argument that sure thank you and the other point i'd make is that's not after a finding and that's not necessary for us to survive a motion to dismiss on this for the other reasons  the clause is not a condition precedent for multiple reasons in order for it to be a condition precedent it needs to be clear and unmistakable under second circuit law if the consequence is to bar the claim it needs to be stated your right to bring a claim there's nothing like that here the clause is also not applicable to the charges at issue here it makes a lot of sense to have a notice and investigation provision for charges where ignite actually has to go conduct an claim but that's not the language but what the what the language is saying is that the that the they don't have an obligation to go conduct an investigation or to make adjustments but this case is not about their failure to make some clause itself i think for certain charges where it's night needs to go conduct an investigation provide notice within sixty days so that they can go talk to third parties other things that actually may be harder to do after sixty days  make adjustments based on the result of that investigation but here we're talking about intentional systemwide printing money back yes they should refund money yes you want to just the amount of money the true client and was a blip to pay right i think that's right but i don't think that the charges here are within the contemplated scope of that clause the other point that i would make you going to have to explain that to us because the plane expansive but there's also i don't see how you limited transactions you know credit card transactions well that there is the phrase card transaction activity within that clause and t in that direction i think i don't think that that's the intent of the well and we start with the language before we get to what the intent is and where the language speaks of fees and other amounts deput or credited under the agreement and then an obligation to give notice i'm not sure i'm not sure what's ambiguous but i think the scope of that is ambiguous in terms of whether it's what types of charges it applies to i think the reference to card transaction activity suggests that it would ignore the remainder of the clause and that's not permissible construction while the basis is logically it doesn't make sense to have a provision like this when you're talking about charges where there's no reason they need to know about it within sixty days they already know right there's no investigation that needs to be conducted and that's the purpose of that clause but that's what it is i agree that that's what it says but i think the purpose of that and i think the language is properly interpret as being limited in scope and being limited to the type of charges where they can conduct an investigation your argument essentially is that because of your conception of what the purpose subjective concept happens to be we should no i don't think so i think that i think it has content i think it has applicability to the types of charges where the company needs to go investigate the other point that i would make is sam did provide written dispute notice within sixty days and so i want to make sure that investigate it's any obligation so where would we look for this limitation you want to impose on it that's just investigative obligations the two places would be the reference the card transaction activity and then the sentence that says if you notify us after sixty days we shall have no obligation to investigate or affect any adjustments but i rather act and you just want to limit the contract terms to the ones favorable to you but we have to we have to construe the language as a whole understood but i construed when i construe that language as the whole or affect any adjustments flows from conducting investigations particularly given the reference to card transaction activity but i do want to make either or how the word or is understood it's understood to create two possible circumstances is that the usual construction i think i think this is not maybe the most artfully written clause is what i would say i know you want to reserve some time for rebuttal so let's hear from the other side claim provision covers every issue in this case not only the way the appellants have phrased it which is one of their arguments namely that even if the in roman letter and amendment was effective even that was breached and in connection with that argument they say section one thousand point eleven isn't a defense but actually section one thousand point eleven is a complete fence irrespective of that in other words they are seeking as your honor put it judge kaplan the return of money under any circumstances and section one thousand point eleven is a bar it is a condition precedent to receiving any money to bring any claim or to any obligation that first data had and here that we have been talking about is if you notify us after sixty days we shall have no obligation to investigate or effect any adjustments the reason i think that's significant is because of your point judge reggie there is a settlement account here and the way the settlement is is defined in the way you can see it works is there's an account that the merchant has from which there are credits and debits their adjustments being made to that money's being taken out monies being put in so the fact that it says here we have no obligation to effect  adjustment clearly is a reference to way that settlement account works that is we don't have to credit you back any funds in that account so i think that's just considered sort of further indication of the appropriate way to read this this language with all that any recovery i think that really does cover the waterfront i guess one more thing to add connection with the amendment issue the court did dismissed with prejudice here as the your  in connection with the reply papers that the appellant submitted at the district court they attached an affidavit to which they attached an august two thousand and sixteen letter the letter was actually from my client first data back to them saying you have complained about some charges in your account so we're going to refund you the last six months so the reason i bring that up is even to the extent the appellant now says we should have had the right to amend because we could pled that we did satisfy it they have by their by the only evidence that they were sort of using the order of the fact the basis of the factual allegation they themselves were making that money's been refunded anyway so that shows i think why and one is the point that was just discussed we did tell the district court that we could amend the complaint to specifically allege that sam in fact provided a written dispute letter within the sixty day window of multiple instances of  with sixty days of the latter and you were adjusted for that period did not my missing something i think that's their characterization of it i think what they provided was a partial refund of fees covering an extended period of time well for sixty days before from january two thousand and sixteen they were if they refunded if i understood it correctly four hundred eighty one dollars and sixty one cents what other damage do you have for the sixty days prior to your letter well part of the fees that were assessed in the sixty days part prior to our letter were not refunded it was a partial a partial refund of all of the what partial refund of all of the fees that had charged if you didn't give notice you wouldn't have if if we find that your failure of notice is a problem that you couldn't remedy by giving notice with your letter your letter would only cover sixty all of all of the time or your focused the refund was one hundred percent of all the charges for the sixty days prior to your letter and in addition additional monies for earlier period true that's a way to count i mean dollar wise this is not a matter of characterization this is a picture it is not a cow they gave you every penny back for the sixty days and in addition some more money for prior periods true or false that's true as a dollar amount yes the other point that i would make though is with respect to the breaches of the amendment which there were multiple breaches zan did not even have notice of the amendment didn't even have the amendment letter in till after this lawsuit was filed so i don't see how in the world it could have been expected to raise a specific dispute letter within that time period and disregarded that we actually played additional facts in support of the good faith claim specifically that ignite new when it imposed this trans armor that the vast majority of the merchants would never be able to get any benefit at all from it that's bad faith