notice of its claim under the second amended complaint and the plane allegations of the complaint consist of three primary facts first that the defendant eaton manufactures and sells three series of general uses snap light switches next that even advertises to its consumers that these light switches comply with you will twenty standards and third that in fact those switches attention to exhibit a to the second amended complaint that appendix ninety six through ninety nine and there are three sets of switches there that is the seventy five hundred series eight seventy five hundred seats each one of those who stand contains over one hundred switches is that correct no i would say about that so if you take a look  at the seventy five hundred series there are eight switches in there seventy five a one seventy five on one dash nine and it goes on from there if you count thirty switches a total thirty switches for the three  or between the seventy five seventy six and seventy seven hundred yes there are a total of thirty different switch and which which is due to test so we did not specifically allege that what we did  allege is that we tested eight sets of switches one at least one set from each of the three series and forget yeah and from that you st sample especially in connection with the pleading is an acceptable method that's been approved by this court and by district courts in this within this circuit i would direct your attention to the f h a favors is no more a case for example where involved residential mortgage backed securities and at trial the district court relied on sampling of loans that were in fact quite different from show difference which is did you tell us i mean there are there were eight sets of six which is where they six different switches there were four different switches some of those sets were subjected to multiple rounds of and tested for switches but yet you're alleging that thirty switches are defective i am your honor and the reason why i believe that's appropriate in this context is if you look at exhibit a appendix ninety six you'll see that the product description and the design features for the seventy five hundred series are exactly the same for all of the switches in that series and that's also true for the seventy six hundred series and the seventy seven hundred series they are this report on it wanted or tech to specify which switches it tested and it it identify the specific switches that were tested well first the we didn't actually have a hearing on this motion we had to just answer that question the third time  why is we did not think it was necessary to do but we could and if we had been given leave to amend we could have identified the switches but we did not think it was necessary to do so and that's why we  conversation that we had with the district court was about identifying the specific accused switches and so the amendment that we provided in the second to minute complaint was to identify specifically which switches we were accusing not necessarily which switches we had tested but which ones that we had accused and that's what the conversation was forced and that's why exhibit a was added to the second amended complaint but you have  provided an incident report to you well on this case about the failures did we could you have i suppose we could have you and and didn't do that we did not want to because what's not the claim that we're bringing and it's not required under the law we are bringing a claim for false advertising on the lanham act and all we are required to demonstrate and prove is that we have met the elements of the lanham act claim what are the words that constitute the false advertising the words are the use of the you will label and then i would also point out that in paragraph thirty eight of our complaint of one of the descriptions of the one of the products says that the switches listed to you will twenty it is rated for motor loads per you well twenty it withstands fifteen hundred volts per you will housekeeping seal of approval toaster company says it doesn't deserve that and therefore it's false advertising because actually it's extremely inconvenient sloppy and poor under that circumstance i don't think so you are because now because i don't think there's as precise set of specifications that we're talking about here there are very precise specifications that the switches are required to meet and order to pass you all twenty these are objective criteria that are published and in fact when tested in the market these switches do not come out of the tested yours and you found yours met the requirements but you didn't submit them to a new one is laboratory could you put down dressed a similar issue with labeling between f d c a proof label in the lanham act and the court held that it's really a matter of statutory interpretation not preemption and looked at the two statutes and compared them to determine whether or not there was an express intent by congress to supplant one remedy or the other and in that case the supreme court held that in fact  that claim was appropriate in that circumstance and here i would suggest the same analysis should be done the text of the lanham act allows for a false advertising claim to be brought by my client in this context the certification mark statute that the defendants have side in the district court relied upon which is fifteen us see section ten sixty four five allows for a petition to cancel a search of the certification mark on the ground that the registrant and that would be you well does not control the use of the market that's an action against the registrant that's not an action against the false advertising those two statutes complement each other they are not in can assistant catalogue it's for the seventy six hundred series it's the entire series of products which is exactly why we have tested samples from that series the description is identical for each the only other point i would like to make is on whether or not we should have been given leave to amend in this circumstance we believe we have appropriately alleged the claims that we've brought  potential reasons typically used to deny leave to amend are not present here amendment would not be futile did not asked for the to him and i understand that your argument is that you didn't have an opportunity but what you could have done is at the benefit of their at least what they can and it worked deficiencies in your complaint and then you you did submit you did take the opportunity to get a first amendment complaint and then you submitted a second amend the complaint we did yes that sounds like three bites at the apple the one issue that the district courts relied upon that we did not have the ability to amend was on the identification of which switch we actually tested was not really part of the discussion leading up to that and i would submit given that this case was barely a few months old no discovery had been taken there's no prejudice there's been no delay that if that in one's laboratory and that's also true so what's not true well i am agreeing with what you're saying is true what i'm saying is there's another step here which is that the manufacturer when it puts the product into the stream of commerce is also saying this product in this light switch actually complies with you will twenty standards and they've in fact do not comply with your choices thank you  products are extrapolating to they have not allege anything in that regard in the complaint and what they point to today your honor in the appendix they're completely wrong about what it says if you look at the product description it does not say this is i'm going to pin it's ninety six the other pages are similar but if you look at appendix ninety six the product description says single pole three way for way those are three different types of switches fundamentally different and if you look down to the individual listings in the table below you see some are single pole some are three way some are four way these are not identical switches there's no basis from looking at this to assume that all of these switches were performed the same way on any particular you out test and broad tech head instead of sampling winstead of alleging that they had merely sampled some of the switches within each of the three series the headlines that they had tested every single one of those switches in those three series and all of  those failed to meet the compliance standards would that have been enough there wouldn't have been the same rule a day problem so what would have been the main problem well there's still the issue of whether they see no it's not a matter of or sent to jail on a percentage of you soon as you're looking at apples and apples you can't just take it you know it's going to campbell's soup intake you know some flavors of campbell's soup off the shelf i'm not going to tell you what they are but i'm going to tell you that similar to the broader set you're extrapolating to it's that simple and they haven't done anything like that here and if you look at some of the cases we've cited like the freedom lake case from the issue of california very similar move that the plaintiffs did there they identified five specific snack products alleged how they were were falsely advertised and then they appended eighty five additional products to their complaint and they said these are raise the same issues of course is this not enough you have to explain it is not sufficient that they're all snack products manufactured by the same manufacturer it's the same thing you're buyer's guide advertises that this which is sheer identical design features and p descriptions is right again no your honor the product description here does not indicate anything about them being identical it's listening different types of switches within this series these are a collection of switches within a much broader series by the way these are not all seventy five hundred series does not advertise the identity of these switches in terms of design features and so on i'm saying there's nothing that can be assumed about the identical construction consumer safety they allege in their complaint that they bought these switches from november two thousand and fifteen to september two thousand and seventeen and it could presumably been testing them all that time if they'd been finding problems with their switches you would think they would go to of their claim is they want to step in the shoes of us out and say it doesn't matter what you are thinks we don't think the u s label should be put on your products and our test tags were to advertise your clients which  conceivable i think the point is that they could do it what is true is that you will has tested and approved these products i didn't really ask you that i said if they were if they would advertise that you your clients which is it would depend on context if it were if they were saying that we tested and our test results shelf the context of just saying that just saying it well that's what makes it difficult i would argue that yes there's a potential false advertising claim there because it determination you have as the owner of the market you will get to decide who bears the mark and it's based on their testing under you all twenty standards you will be wrong but that doesn't really matter so long as you will the germans this product is appliance that's opportunity to lead to an end here as they did the amended three times after we originally brought our complaint and the judge issued her order saying you know go ahead the minute you going to mend they made it once twice limited twice i'm sorry i do twice but they also had a third opportunity to request leave to him and their opposition papers as we all genomes are going we would have actually would have probably been in the reply at that point i'm not even sure but in any event if we had opposed it they still would have had the opportunity to ask for it and they didn't and so there is no abuse of discretion here and that is the standard that their district was not spontaneously required to give them another chance  she indicated in a ruling she was genuinely concerned that this issue had been squarely raised from the outset in opposition papers by the judge at the initial status conference and and for strategic reasons apparently they chose to not to disclose this information this is the first time today that i heard that it was only for products that were actually tested that itself is a significant piece of information that i would have liked for tuning to respond on the issue of what the representation is from when the manufacturer uses the you will mark i would point to a quote that we included in the complain at paragraph thirty one from you will itself and that reads quote the presence of the ul certification market is the product manufacturers representation that a product meets all  i think it's actually i think represented in the you well as the time and that he switches comply that's not actually what what it says you are it's the product manufacturers representation manufacturer is making a representation that the product meets all the political requirements on the the sampling point the question posed by counsel for even was are the products materially similar in order to extrapolate from the sampling and i would submit that if you actually look at this product guide that it is more than plausible on the pleading stage to conclude that these products are materially similar when they are listed grouped together by the manufacturer listed with the same product description listed with the same design features  referenced earlier at paragraph thirty eight of the complaint again taken straight from the product materials from eton for the seventy six hundred series all of the specifications for the seventy six hundred series are listed together by the defendant and are advertised as the specifications for all of the seventy six hundred series so isis would submit that in fact the products are materially similar such that is appropriate to