morning good morning your honors and may please the court my name is greg blankenship and i represent the plaintiff appellant mr sean john by its own terms the decision below fail to acknowledge that the standard at the pleading stage for determining whether a pla adequately alleged injury and the standing is possibility and the decision below explicitly rejected the usual rule that court must draw a reasonable inferences in favor of the plaintiff when determining whether a from whole foods the department of consumer affairs press release said that whole foods routinely overstated the weights that this was a systematic problem and effect this is the worst case of mislabeling the d c inspectors had ever seen  there was a short wait but then there was some states in the other direction as well right but you're one of the only basis to conclude that there were some weights that were there actually overweighted is an anecdotal report from a daily news reporter and a couple points on that first off that obama from the department of consumer affairs well it's certainly not in the press release where they state that there was an overweighting in the actual d c inspection  there were seven that were either accurate or slightly underweight out of five hundred and sixty three that's one point five percent out of a hundred and so if the question is plausibility any time there's a ninety eight half percent chance  purchase is underweight be by definition it certainly would your honor and particularly given the mr john didn't just make one purchase he alleged that he shopped at two whole foods over the course of the entire time the dca inspection occurred and then he made these purchases on multiple occasions cheese and chocolate muffins chocolate cupcakes your honor and yes that's correct and correct and in fact your honor as we know from the mold declaration which the defendant submitted in connection with their motion to remand the case that both cheese and chocolate cupcakes were among the specific products that were tested by the dca so there shouldn't be any question that first of the d did you get what are you getting on this what do you what do you hope to achieve with today's appeal your honor we believe eve that the court should know the case but the appeal on them with case well your honor the consumers have been overcharged this is a classic example of a deceptive practice wholefoods puts its thumb on the scale and this isn't just some isolated instance not only did the dca conduct its investigations both in the fall in the winter but it found that again over six hundred fifty instances they tested over six hundred fifty products and that resulted in ninety eight point five percent of those products being underweight so consumers paid more than what they bought for and that's the exact purpose for the new york section three forty nine which is to prevent corporations from unfairly deceiving consumers as to the much was the damage was the total really to the  overpricing well your honor it varied of course based on the weights in the cost of the product candidly most of these are small dollar amounts they're a dollar or two maybe five or six dollars for large products but the new york g p l explicit the terms of the statute itself provide that a person who is injured gets their actual damages for fifty dollars whichever is greater so arguably if a person has made multiple purchases perhaps that's that would be their total damages aggregated among the various purchases but in any discovery and none at all your honor we are just here on a most to dismiss we there was a amendment to the complaint because there is it's it's  possibility i would agree that at some point loper step one well your honor i don't think you can name what a percentage is we know that under andersen news plausibility is less than more likely than not so more likely not as fifty one percent so for the basis of a motion to dismiss obviously not as the case progressed as it might be it should be somewhere less than fifty is it really as as cleanly mathematical as that i would say i would suggest that for the more likely than not well we know the possibilities less the more likely and more likely than not to me sounds like fifty percent now where between one and fifty percent we fall i wouldn't care to speculate but here that's not the hypothetical we know not only from the press release that the eighty nine percent were weighed more than federal variance but we also know from the actual test results that ninety eight point five percent of all the products weighed were overweight and i of the details about the chocolate cupcakes bear explanation the explication dca weighed twenty four pack is the chocolate cupcakes and twelve packages of vanilla cupcakes at three different stores and every single one of those packages all thirty six were underweight by between he gets to be a very funny kind of class action because you've got the purchases of chocolate cupcakes and cupcakes and cheese over the dubious times he purchased the exact products they're identified by the dca there are other counties when we get i suspect that we're going to find in discovery that it's not just limited to specific products that it involves whole foods entire the court david sellers are from whole foods your honour's the district court correctly ruled that the plaintiffs pleaded only conclusory allegations which the court found to be wholly speculative and which fell far short of a plausible claim that this point if mr john purchased a product that in fact weighed less than it was supposed to weigh the district court's conclusion to the decision dismissing the complaint for failure to plead a non really that he purchased cupcakes and cheese at two whole food stores once or twice a month for two years he doesn't identify the type of cheese he doesn't identify the type of cupcakes he doesn't provide any evidence  he your honor he's repeatedly said chocolate cupcakes but he's said chocolate cupcakes based on the mall affidavit the complaint doesn't say chocolate cupcakes there's no particular area he's had three different complaints in to this we do not know what kind of cheese product he purchased or what kind of cupcakes were when really were well really require him to specify the kind of cheese you run or the d the difficulty here and it's that with the amadeus case the difficulty here is that we have no idea whether he purchased a product that was incorrectly weighed and it's perfectly plausible that he bought a product that we exactly what was supposed to weigh and he got his money's worth the dca press release really only identifies two different figures it says that the dca tested eighty types of products and found that they were  meats and there there's no specificity in the in the agency where there is specificity in the agency reports your honor in our understanding was that the court had ruled that it was not going to take judicial notice if you look at the notice is a violation they involve highly specific products actually so if the notice of violations says munch a goat cheese at it at a whole foods store at columbus circle that has no bearing on whether this particular plaintiff bought grated cheese parmesan cheese smoked gouda cheese or any kind of cheese and some other store at some other time he's never identified the particular products that he purchased he's products which means they conducted at least eighty tests but they describe numerous different types of products not all of which are cheese big goods in meats they describe in the press release shrimp they describe vegetable platters they describe but it's they describe a variety of different kinds of prada yes certainly none of those richie's none of those are necessarily dearie they do say that we found one incidences a systemic mislabeling of products and they described included in their rubric meats bakeries and and dairy products but they don't not identify what they are so what you're dealing with is mr john coming in and saying i bought she's whatever kind of cheese and i but cupcakes and we have no idea how many was in the answer is that he should be as i understand it was dismissed with prejudice he was this just this with or without this dismissed with prejudice but it was dismissed because of a lack of standing it was just it wasn't dismissed with prejudice because of a lack of standing the case was dismissed with prejudice the finding was there was a lack of standing was that the rationale for the dismissal that was the rationale for the dismissal but not for the dismissal with prejudice with good reason because if it was dismissed like a standing it can't be  absolutely in that why was it dismissed with him in the court doesn't say and in the opinion it's clear that the court did not dismiss with prejudice for lack of standing the court held that it was dismissed for lack of standing that is what i understand to be the central holder judgments as with prejudice it's these judgments as with prejudice not with respect to standing the court then went on your honor insead in the alternative for the same reasons that there was a lack of standing that would necessarily lead me to the conclusion that the case should be dismissed for failure state a claim that's there's no standing court has no jurisdiction do that is a correct correct your honor and it was an alternative holding in the court need not reach the alternative holding but if this court reaches the alternative holding which this court is able to do this court can affirm the decision on any grounds if this court affirms the decision based on failure to state a claim the court could dismiss the complaint this court could up hold the dismissal of the complaint for failure to state a claim and that is the grounds on which the case was dismissed with prejudice and would also point out the judge angle myer's decision dismissing with prejudice also followed judge angle myer conclusion that leave to amend would be futile and if you look in the record below my opponent never asked for leave to a man and he was given repeated opportunities to him and judge right is that he didn't specify the kind of cheesy because why would granting leave to mend if you do he could allege what kind of cheat your honor my only my  only point is that he had three different opportunities and he told judge ingle meyer that he didn't need to amend his complaint and judge ingle meyer tried pretty carefully to elicit from him whether there were any additional facts that spoke standing that he had not included in his complaint and he went so far as to say don't leave it in the locker room this is your chance and he said i don't need leave to amend would you argue that point that you didn't know what kind of  we argued at that point that we had no idea based on his amended complaint what kind of she's he had purchased and to this day we have no idea what kind of cheese he purchased and that's that those are really the only two numbers that are included that are pertinent in the in the press release the eighty tests in the eighty nine percent failing to comply with the maximum allowable variation and the other data that my opponent has mentioned about the number of different tests came from the notices of violation which were not within the  record your honor this is a case in which all of the press release does is it provides us with a summary of the investigation and end of the of the facts that it alleges it only mentions those two things there's no allegation that mr john ever purchased a product that was actually underweight and that is there's no allegation that he bought a product that weighed less than the amount that was shown on the label for that product doesn't tell us what the particular products were the press release only says dca tested packages of eighty different types of prepackaged products and found all the products had packages with mislabeled weights and eighty nine percent of the packages tested did not meet the federal standard for the maximum amount that an individual package can vary but he said federal standards the federal standard our commerce department you know really is what what is it how much deviation might my understanding your honor is that the complaint there was a request so to speak for two to be able to amend to correct the deficiencies that i think you're trying to identify for us there is that language in the complain the district court and he was then asked at a later hearing whether there was anything else that he that was with that there was anything else and he said he had no other facts so the judge angle mar found that amendment would be futile and on that basis he made the dismissal with prejudice but that was not tied to the dismissal with prejudice i'm sorry that was not tied to the dismissal for lack of standing and your honor we think we agree that you could not dismiss with prejudice for lack of standing you could certainly dismiss where there was no basis here to find standing but if you find on the alternative ground that you could that the case was properly dismissed for failure to state a claim and you could dismiss with prejudice and the court has the ability obviously to rule on that alternative agr no plausible let allegation of injury for the reason for failure state a claim and not also reach the same conclusion on standing therefore if the lower court found that we failed to plausibly legit injury then it must be without prejudice because the court lacked jurisdiction you can't reach the altar of holding in the first place you could you just clear up something for me you say your client would prepackaged cheese prepackaged chocolate cupcakes when we define the prepackaged foods those are the foods that whole foods always in labels in the store releases regional area and then paragraph twenty two we we specify that and i'd also like to point out your honour's that the  complaint was actually only our second opportunity to amend mr bacile lino is a plaintiff who's not here before the court also filed a complaint but that complaint doesn't just rely upon a press release to determine whether or not the products the pla purchase fell within the d c investigation because we also attach the mall declaration to the minute complaint and the money declaration specifies that chocolate cupcakes are among those that were purchased and of course we know from the d plaintiffs there provided no basis for the court to determine whether or not it was actually plausible that they were injured for example when i am an extreme group and entity named swift held some unspecified portions of financial transactions and the diff the plaintiff which is one of thousands of companies that swift collected information about provided information and then some unspecified amount of information from there was provided to the government and so if you imagine a venn diagram with the circles there was no basis to see where they overlap and that's distinct from the case at bar where we've demonstrated not only that all of the chocolate cup of chocolate cupcakes are overweight but also the numerous times that our plaintiff purchased the products it's not zero well in terms of the two chocolate cupcakes that were raided was in fact every single package that dca weighed thirty six different packages of chocolate of an elk updates every single one of them was overweight between six and thirty two percent seven out of the six hundred fifty three packages that the d c a way that warrants if it's six percent and it's within the ten percent that i understood a moment ago is understandable deviation and federal standards that's correct your honor and candidly we didn't try to do the math to parse the percentages to confirm whether or not the inspection results that we received were enough but but again the amount of overweights reached as high as thirty two percent and the vast mage and this is these are the records that are attached to our opposition to the most right the vast majority of those were well over twenty percent i see that i've gone over my time in the us the court has any questions thank you thank you yes thank you both will reserve decision in the case of united states versus sampson we will take it