takes this appeal involves a dismissal of complaint on the rules will be six cases a consumer class action legend claims on the california or new york's consumer protection statutes in various warranty claims the grab i'm in of are complaining is that the phrase starbucks double shot espresso displayed prominently on the can of the product leads consumers to believe that the product contains two shots of espresso when in fact it does not based on the difference in caffeine levels between the handmade starbucks you get in the store the starbucks were versus the express versus the canned product at issue now to support your allegations we commissioned a national consumer survey which demonstrated based  name label the product that people believe contains two shots now that survey wasn't close home most ninety percent of those surveyed answered in the affirmative  anything but just allegations of what it had to do let me read you the allegation that we have in the complaint about this consumer survey paragraph thirty three of our complaint a recent national survey conducted a moment a demographically representative u s sample of over four hundred consumers of the product demonstrated that based on the name and complete label of the product over eighty nine percent of those consumers believe that the product contains two shots of starbucks brand espresso so you're glad i said the survey was conducted by an independent market research company so you're alleging plausibility in that paragraph that's the purpose of paragraph to show the plausibility of your comments before when you say probability what do you candidly i can't i don't know what the answer to that question is we played it this way when we were challenge to at the district court level we readily said give us lea to a man and we'll give you all the information you won't that's not an issue we have the information if you're willing to import it if you win here but what if we if you win here why do you need to amend or raise your existing if it's of fish and if i if i win here i do not need leads to a man cause we'll go into discovery and then we'll get into the real facts of the case a part of part of our appeal here is well that is more than adequate what you've said more than adequate to show plausibility at the at at this juncture yes otherwise i'm putting in basically expert testimony everything is accepted as true but not only that we provide we provided a basis for the truth what we don't have to do and why i do not think we need to go any further because to put all those other things in now we're pleading evidence is that what i have to do here is plead evidence to to meet to meet the plausibilities standard i don't believe so i believe we've met that standard and if we haven't we can meet it anyway on an amendment now in addition to that we did not test the product on average contains less caffeine than the double shot sold in the stores the difference analyze the data that we got and he came back and said that that difference is significant to stickley significant i then put my math cap on  determine that the difference was about twelve percent ok and said to myself well if they took twelve percent of my income away from me i would consider that material so i believe there's a real difference in your you in one of the other you're using their caffeine quantity as a proxy use caffeine as i was the surrogate without question because i can tell you from my own point of view if i walk into a starbucks or any coffee shop and  i want that extra hit a caffeine i'm having espresso to me espresso means a higher cuffing concentration i'm getting a different one in the store than i do in  the marketplace when i buy the cayenne and there is no reason that i should believe that i should be getting any difference especially when it's cold starbucks double shot espresso and i'm not getting as a couple shot what's it called can last the shot glass depends on the bar with a shot glass that will match three goalies with the shot glass has a measure in it and you'll be put into you'll be over the top but maybe that's what you want to do you over the top two shots of the brand this preso your opponent suggests no the caffeine content is not fixed it's not a precise indicator of the quantity of the a special of any given product and they they suggest that's the whole of the issue and the district court bought that but in the district court is incorrect why well because you can use an average if you want there's nothing wrong with using an average average ok when we did the testing and i talked about the one point three six milligrams versus the one dollar milligrams that is averages now there's no question we use the caffeine level as a surrogate no question about it but the consumer that walks into the market into the market and buys the candidate says things they're getting a double shot of espresso and they walk into starbucks and they a double shot of dope you know they're going to think it's the same thing you know if you had eighty nine percent of my consumers said so if you buy the can and you've also been a starbucks customer under your theory you should know immediately and open the ok and that car has four hundred and fifty six horse powers in it and i bought another car and it has three hundred and eighty five horsepower is in it i doubt alicia a real car person you're going to be able to tell the difference between three hundred and eighty five horsepower and four hundred and fifty i can tell the difference it's a better analogy because you can always measure of strength of a movement by your horsepower and this point that you're defending makes here that there's no real deception because someone who buys a can be feels it's too weak won't buy the can anymore if he feels it's too weak it's because he has in mind the measuring he had when he had went into a star books but there's no evidence that there's not an allegation that people bought the canned once thought it was too weak so they didn't buy another can know the allocation that we have is that over eighty nine percent of consumers polled believe they were getting a double shot of espresso this isn't really an issue of class certification isn't it rather than district judge did was accelerated the issue of class certification i think she was really i think she looked at this like the court below looked at this like a motion for summary judgment and act it is the fact caffeine it sells coffee the plaintiff has not sued on the basis of any representation about caffeine because there are no such representations made on the product the product is a coffee product coffee of course contains caffeine it's a natural beverage think you're missing the point of the caffeine related allegation to actually it's been used as a proxy for quantity of liquid understood and that is so they're not they're not we're not at the point of trying to figure out whether it would be material to a consumer who book buys your product whether it has one hundred and thirty dollars versus one hundred and twenty dollars milligrams of caffeine they're just using that as a stand in for the quantity of the liquid it's in a can and it seems to me that's perfectly reasonable here why would that not if you're actually using the same beans that you used to make a suppressor in your stores and you are in fact making express suppressor as opposed to some other coffee beverage even if you do it on a mass basis versus an individual you know one shot at a time basis why would i assume that the caffeine level is going to be i guess what twelve percent difference you're out of caffeine is dependent on a number of factors even across different types of a suppressor including such things as the method of production the equipment used the technique used the plaintiffs admit that in their complaint the plaintiffs admit that different brewing techniques and equipment can affect the levels of caffeine and these products are obviously brewed by different methods using different equipment one is prepared before the consumers eyes by hand using single serve equipment there's no question it's not obvious to me that if you are making a spreads so again not because that that has a very specific meaning in terms of the method of making the coffee it's not just like a drip coffee right it's using pressure to water steam go through very fine ground or if you're using that technique and you're using in fact the exact same beans i'm not sure why producing it on a mass basis versus a shot by shot basis would result in a variation in the caffeine level of the liquid that comes out of the machine that's it seems to me that's not an obvious fact that i can just take judicial notice of i would need some proof and maybe complaint that the techniques can differ and i think that it should be obvious if you look at a care and beverage that's produced in a factory i don't think it's a stretch to infer that there is not an assembly line of baristas sitting there with a pro's pulling but i just told you what my assumption is my assumption is obviously that you're not you don't have the individual cans in your point individual shots in there you're making a stress on a mass basis to in order to produce a can beverage i'm granting you that if if the implied representation on the product label is true what you are telling consumers is that they are in fact getting two shots of espresso made from the same beans that you sell in the store made in a through a method that actually produces a liquid that process so it's being done on a mass basis as opposed to pulling shot by shot i'm saying that i don't have any basis for knowing that the difference between the mass production basis and this shot by shot basis is going to have a variation o representation itself and the embedded in that question is what exactly is a shot let's let's put that aside because i know that's just threshold argument i think you lose but just take on the suit that i'm not with you on that st part ok we get to the they're using that as a proxy for the quantity of the liquid that's contained in the q and i just explain to you why i don't think is a factual matter i know why the caffeine level would differ based on whether it's an individual shot production versus a mass production so what's the what's your answer to that your honor i don't st of all you have to look at the plausibility of all of the facts if you have a six and a half ounce beverage the st ingredient of which is a spread so i think on that basis alone the notion that there's less than one and a half ounces of suppressor is automatically suspect the nd thing i would say is that again to the constitution of the can product it's shelf stable it's not a fresh product that again is an indicator to the consumer that is a different fundamentally different type of beverage  rd of all i don't think that the law requires that the products be of identical consistency or even quality to use the term that the plaintiffs have adopted here i think california law is clear the rubinstein case in particular talks about that you can have a gap sweater in one store and another gap sweater and another store at the same brand they don't need to be identical and it is not false advertising to fail to explain the intricate differences between the two products that is for the brand to decide how they want to put products on the market it's a dynamic marketplace if they choose to use a different grade or quality or strength in one context versus another context that is the manufacturers prerogative to do that as a matter think these defenses that you would put rather then an issue right now on the sufficiency of the complaint i don't believe so your honor because what i just described is a matter of law rubenstein was decided on the on a demur the state court equivalent of a motion to dismiss and that court affirmed the superior court sustaining of the timber on the basis of a purely legal issue which is that a manufacturer doesn't have to offer uniformity even when it's selling the same product the question the question is what's the meaning of double shot that is a great clear lead the manufacturer could do anything you want with the canned but if it says double shot and a survey is brought to bear saying that that means that's two shots like you get in a starbucks in a corner then there's enough alleged splodge bull that there is a deception here that's all the planets are saying you are on your defenses you could defeat the that the plaintiffs offered around their service even taking it at face value do not say that consumers believe they are getting the same exact beverage and once again once the survey four then the survey says do the consumers think there are two shots of espresso in the ca it does not say do the consumers believe that you are getting the same drink that you're getting when you order a dope you know in the starbucks cafe those are two very different questions and this by the way is part of the reason we took issue with not putting the question  even if you take the allegation face value in the complaint but i think you're raising the pleading board to harming the well i'm reading the allegation on its face it says national survey conducted among demographically representative us sample of over four hundred dollars consumers of the product demonstrated that based on the name and the full label of the product over eighty nine percent of those consumers believed that the product contains two shots of starbucks brand espresso period it doesn't say believe we're getting the exact same drink that we would get if we ordered it in a starbucks cafe it simply says we believe we're getting two shots those of the excellent questions to ask the expert but for the purpose of the pleading it seems to me it's  your honor respectfully they don't even allege it's the same that consumers believe in it's the same as what's in the cafe it's simply alleges that they believe there are two shot there's not even i just think you're misreading the allegation there it beans that you sold worldwide so what i read the consumer survey to say is not even that as in rubenstein you are just representing that oh well we just are putting some generic press so could be from folger's for all we know we're just dumping that in there if starbucks brand to suppress so many in the same spreads so you would get if you went into a starbucks and said can i have a double shot of this presser please so if that you can if that's true and that's why i say i just disagree with you on the st part then say ok well the consumer thinks that you're dumping the equivalent of two shots of your brand of us press so in this can and so why would the caffeine level be off by twelve percent if in fact that's what you're doing again there might be an explanation that you'll be able to prove out with evidence but at the twenty six age i don't know what the answer to that is you're either respectfully roast is only one factor of about six many that can affect the level of caffeine in a product other factors which the plaintiff admit have to do with brewing technique and equipment and so on so simply alleging that it's the same roast of beans used in various different context that doesn't resolve the question and a modest differential caffeine is is easily explainable by reference to the methods of production that are obviously different between the a b you know  that the fact that you're more more familiar with your company's products than i am but i don't know that as a factual matter that she strikes me as something that you'll will need to be fought over in summary judgment and maybe you get out of summary judgment but they've all they need to do is inch their complaint past the level of plausibility and it strikes me as at least that laboratory test that the don it makes it plausible that maybe there's not equivalent to two shots of espresso maybe there is but all they need to do is  not trying to prove up the whole case of the complaints that if i could counsel it seems to me that we have two explanations here one is that the product is not contain two shots that's the one explanation that's from your opponent the other explanation is the coffee the caffeine content is not fixed or precise indicator of the quantity of the espresso in the product that your side but if i have both of those it says to me twelve b six is not a place for us to be throwing this case out because if there are two alternative explanations one advanced by you and one by the other side both of which are plausible then at that point the twelve piece explosion should not be granted that's what we said in star and so i'm trying to i mean i hear you arguing with judge watford who knows a lot more about his coffee tonight but i'm just saying to you i'm looking at this on the explanations offered and i'm saying if i follow star i'm trying to figure out why twelve b six is the right place it seems to me summary judgment might be the right place but if i look at williams b gerber it says a reasonable consumer question which is whether the reasonable consumer likely to be deceived or misled which is what's got to be proven his a jury question and so therefore i'm saying to myself on a one hundred and twenty six motion when i have to give every benefit of the doubt to the one who's alleging it how do we get there when you're under the question that we've been spending the bulk of the time here talking about has been whether the plaintiff is adequately alleged fal compressor i'm more like what that old d j over there from new york who's saying that isn't what that's about twelve p six that's a summary judgment but i got that survey then i can get past that then i go to the attacking the allegations about the caffeine and your ears were of got these two different possibilities and i'm just saying this doesn't seem based on star the right place to say by the way i can discern that and certainly not as the district court has suggested because of their judicial knowledge about this well your your honor i don't think it requires judicial knowledge i thought the last what she stand well even if the court indicated as much the fact is the differences in caffeine concentration attributable to brewing technique and methodology that's something the plaintiff admitted in the st in the st iteration of the complaint that was based upon the website the pla tried to use the straw bucks website to death to demonstrate the differentials in caffeine and we pointed out to the court that website states on the very same page caffeine levels can vary greatly depending on such things as brewing technique and methodology they backed away from that in the  amended complaint however the plaintiffs from their own lips admitted such factors can affect caffeine concentration so whether the court indicated some some reliance upon judicially noticeable fact or not the court can sustain on any basis in the record it is in the record that the facts together to determine plausibility and the notion that there is not at least one and a half ounces of a spread so in a six and a half ounce beverage the st ingredient of which is suppressed so i don't think that's plausible i think using caffeine as a surrogate for the volume of there ok very good you have a little bit of time for one on this different known hallett's made in this that any other thing the brewing this in that this does not give starbucks car block church to turn around and make a problem call a double shot and have to work so milligrams of caffeine in it but based on councils representation starbucks a common element which we claim what is that common element two shots of starbucks espresso so maybe a little different drink doesn't change the falsity of the statement last it stein case rubenstein case is a much different case of the gap factory stores factory stores much different then you walk into a gap store if i walked into a gap store in a gap factor store i would know there's a difference there discounted and they have a special name gap factory stores and what we're talking about is a difference in quality and gap across its brand line ok this is one individual product not of a line of gap clothing so i think there's a big difference between those two cases i will say church woolford you do have more knowledge about coffee and caffeine and i sure am a great thirty seconds left say thank you to the panel it is always a pleasure especially judged i was thing from the southern district of new york which i've appeared before many many times i thank you for it thank you fountain kids just argue to submit