good morning your honour's and may it please the court this case arises from the defendant apple e x o communications services unfair unscrupulous misleading practice of intentionally failing to disclose material critical information regarding the renewal and terminate of its tell me telecommunication services contract but now this practice which includes omitting from  monthly bills that it sends to its customers any information regarding the a political contract term the a political renewal date based on the start of service date that is calculated as well as the date by which a customer can cancel their contract in order to avoid an early termination penalty not only is the practice of disclosing this information unfair and misleading but if islets the express terms of the provision governing the parties relationship by failing to provide to the customer the notice that that customer reasonably expects based on the express language of the contract itself now the district court below committed reversible error in two respects the first was in not permitting the plaintiffs to make any meaningful legal argument in support of the proposed amendment to the complaint that the court of previously dismissed and secondly in finding that those proposed amendments were few tile and denying  the ability to amend on that basis and there's been there's been some confusion certainly in the district court below and it was reflected in access brief to this court regarding those amendments and the district court and  both said the plaintiff had multiple opportunities to a man that's not in fact the case now the operative complaint here is in fact the third amended complaint plaintiff filed the first complaint when it received a motion to dismiss from the defendant  misnomer issue namely that a corporate predecessor had been sued in lieu of the correct end of the first amended complaint was filed to correct that misnomer issue no other changes were made the issues were briefed the court issued its order dismissing the complaint and gave  at the plaintiff filed the second amended complaint which the district court sue a sponte struck the very next day incorrectly finding that the court that the second amended complaint had simply reiterated claims that were made the first time around without noting the additional factual allegations that were made in there that made the a man amendments not futile as such the court requested that the plaintiff appellant refile the complaint now style the third amended complaint with what the district court referred to as a figurative roadmap to the amendments that were made and that's what the plaintiff appellant did provide a summary of here's what was in the original complaint the first of many complaint here's the changes that were made as a guide post for the court to be able to understand what those was there was no order to file a motion for leave to match and no motion for leave to amend was filed in the district court below nevertheless after that third amended complaint and the roadmap were filed the court solicited a response it's a question of whether a reasonable consumer would be misled by the conduct of issue you know i'm just talking about these two provisions of the deceptive trade pakistan they don't seem applicable to this case only one the act more broadly prohibits any deceptive or unfair practices in the course of trade or commerce and the reason there's two reasons actually that the the point of states a claim for violation of the the first relates specifically to the notice that we're talking about your honor when xo where in the deceptive practices do you fit your case  requires is that company will inform the customer prior to the expiration of the initial term or a applicable renewal term that if no action is taken by the customer there will be an automatic renewal and knows that was provided in every monthly invoice so they just there is no ambiguity in this contract there is no notice of the exact role of or date required that's correct and of course you know ambiguity is determined by the express terms of the contract itself but when when a party enters into this contract based on this language here at the time of contracting the only reasonable expectation would be that that would be the sort of notice that would be provided and term that there is not a magic renewal feature if the customer doesn't take action and that warning was given every month yes the the contract requires that to quote the exact language i saw one form the customer in writing prior to the expiration of the initial term that if no action is taken this room water medically new as set forth a ball now that s as set forth above language is referring to the immediately preceding language in the contract which states that the service term will begin on the start of service state so that's defining what the term will be now the contract then in section i am looking at page one fifteen of the appendix section i defines with the start of service date is now one of the start of service days could be the date requested by the customer and in fact on the service order related to this contract the start of service that it was requested was july seventh of two thousand by now x so has asserted that that is not in fact the start of service date the start of service date should be calculated to be a different date in september of two thousand by now that calculation is entirely within the province of x l to determine when that start of service date is and when the term has that information was not at the time of contracting nor after provided to the point of appellant so therefore a fair reading of the language of the contracts that calculates the term based on the start of service date places the onus on x so as sort of the holder of the start of service information to provide that information to the customer then information was never proof presented there's no way for the customer independently to determine why did when they were rising to just call up excel what the issue with the with the pen ask you know when and when the what the expiration date or where or what i think the issue they did not do that your honor that's correct why did i do that the obvious thing to do because at the time that they realized that they were going to be subject to these terminations charges that time had already passed but by the time they are so informed them your contract renewed on x date and you are going to have to pay us first two hundred eighty three and then they change the story to over nine thousand dollars in early termination charges the time to be able to do that without incurring those charges had already passed because they were in possession of that information and i think you know your honor that gets also to the point of regardless of what actually could have been taken afterward the question is what is the reasonable expectation of parties entering into this contract based on the language of the contract itself and with respect to what i was saying s the start of service state when you read this contract the reasonable expectation which is borne out by by most other companies in the industry to do exactly this is you're going to get a notice your contract expires on december twenty second two thousand and sixteen if you don't terminate by that date you will be subject to early termination charges et that's a reasonable expectation based simply on the contract language here your honor if i might though pivot back to what was so what effect do you give to this in the statement your contract with actual current service term is why don't you well i mean that's certainly an option that's given in the monthly invoices that follow but it's not what would be contemplated by the parties at the time of entering into the contract issue which at least for the prescribed hundred of you don't know something you need to know understand your honor's point my point would just be that that requirement is not included within the contract itself but again setting aside let's see this contract doesn't exist as language doesn't exist the fact that x l never provide notice of when the renewal term will expire and when action needs to be taken by the customer setting aside any contract is an unfair practice under the it because it misleads a reasonable consumer and it does it doesn't because a reasonable consumer not knowing what this service term was would have called up when the that's certainly a determination that a fact finder could make but in our complaint we allege scores of consumers who are saying that they were misled by this exact practice and in fact you know the evidence would show for went to discovery that the industry standard is to provide that information to provide meaningful notice to a consumer when their contract is going to renew access specifically doesn't do this as most other companies do because it leads to very high early terminations are listen the service terms stated in the contra the service term yes the three years as stated in the contract but when that term begins is stated in the contract when it begins yes the one that's three year clock starts to run and therefore when it ends is not stated in the contract it doesn't begin when the contract is signed no it does not your honor and in fact on page one fifteen of the appendix in section i of the contract it gives the formula for determining when the start of service date is there is a date on the contract year july seventh two thousand and five but according to the contract that is not the start of service day it's come but you say there's a is a method of determining it relies on when x so take certain actions with respect to the service but the last one i see that i'm into my rebuttal time but the last point i want to make on the consumer fraud count you are wrong wrong wrong or time i'm already over all my time then i will not make any more points unless the court will permit it and i will to see why you can write just very quickly on the consumer fraud count one issue never addressed by the district court at all was the issue of there's allegations in the an additional early termination charge of over nine thousand dollars that statement that the two hundred eighty three dollars payment to resolve the issues between the parties was a misrepresentation that the plaintiff relied upon to make a payment that it otherwise would not have made if it had known the i do not want to go through aspect which i think that this court has already brought up but i do think that there are some some questions of the court raised that are really right on point there are is absolutely no ambiguity in this contract and i think one of the things that is most instructive about the contractor on which he will look at the section a sentence that follows the sentence off cited by the date or start date that's not what it is the initial term is as pointed out by this court three years and it appears on the first page of the contract that the products that they were signing up for were for three years the contract clearly indicates that a term means the duration of your contract not your start date there's also to articulated in the contract and section i that the contract will start on service date and gives three different particular things that can happen bluntly if you pick up your phone and there's a dial tone your service has started it also can be situations where if the service has been installed by x open to the customers moving into brand new space the carpets not down the paint's not dry the service is there but the customer hasn't picked up the phone to start making calls on our end the services they are it's available for their use regardless start service day there's this continual argument that term and start of service day or and day are the same things and they're not the term is just the duration the contract which was for three years and it was also notable that this contract renewed in two thousand and eight two thousand and eleven two thousand and fourteen no problems no issues no communication regarding we do not want to renew years only in two thousand and fifteen that the appellant claims that they began having an issue in terms of wanting to get out of the contract and they were in the middle of the final term there was a three year period that the employee had the opportunity or had the apparent authority or held themselves out as having the parents already to modify the contract the contract itself has specific language and section and that not only says that there will be contract was only going to be modified both parties signed off on it and as has been noted by the court and by the appellant the formula for calculating the early termination fees the early termination charges is set forth nothing here that would take this contract relationship between the parties which was a signed contract with clearly published terms and turned this into a deceptive act by the actions of one employee who says may or may not say two hundred thirty eight dollars is the early terminations fees and then a nother bill coming in for additional services a for additional amount is still permitted under the contract that that set of facts that are planned play it does not take this out of the contract and it does not take it into the realm of the deceptive and fraudulent a it's a contract signed ten years before that communication and it's still in place here are other aspects of the the complaint that were not discussed here very briefly the court the lower court ruled on the a simply that xo charge for only terminations charges that simply would be futile it's a paraphrase elated services the early termination charges are set forth in the contract the form was in the contract and it's also  a public document we did not deviate from that there's no allegation that we deviated from that and finally the final claim was of the federal communications act the federal communications act section two a one does not  figure is out of the contract so it is your honor if you actually the the formula in the contract is very basic one in which it is your monthly recurring revenue which is by the way does not include taxes or charges multiplied by the number of months remaining on the contract using the deadlines and using the time frame as played by the appellant would be approximately twenty four months there was four types of services provided here basic business line which was the cheapest one distance of p r i and within the p r i in the b b l z is intrastate service for instance calling chicago down to springfield illinois the all of the fees if you add up what has been played by the plaintiffs in one thousand dollars and the two hundred thirty eight that they play paid squarely within the formula i check elated not only by the contract but by the the bill that's been attached exhibit three so you can see on page one of the the contract what approximately in two thousand and five those services  cost basic math would indicate that the charges that were alleged in the third amended complaint the second amended complaint in the first amended complaint all are very approximate very approximate to the formula that appears in the contract thank you your honor for the time quickly with respect to the f c a count the declaratory relief count i would simply notice that neither of those counts were addressed in any way shape or form by the bush record pull off and so do the reasonable analysis of the course required to conduct us to the fish and see of those claims was never done secondly with respect to the consumer fraud acts count claimed miss miller made reference to the aftermath and you know that a cow was dismissed following that we disagree with it that's what happened but to say that the omission of this information the notices that access sent in this case are patently as a matter of law and not unfair misleading or deceptive would actually go against the finding of the illinois legislature when it inactive the after a finding that evergreen clauses are  inherently unfair to the consumer now i'm not sitting here saying therefore we have an after claim and getting the business to business exception aside what i'm saying is that as a matter of law at the pleading stage plaintiffs have stated a sufficient consumer fraud claim to allow