an ethical unscrupulous and unfair practices that are injurious to zimmer's and that it made false and misleading statements about how it raises its produces its chicken yet for purposes of standing the district court ignored the broader unfair unlawful prong is based on the violation of the false advertising law but we also allege that there has been engaged in unfair and africa practices and that i made false and misleading statements about those practices and business act or practice and unfair deceptive untrue or misleading advertising so eyeballs advertising is also subsumed by the unfair competition law claim so we argue that the unfair competition law is more broad than the false advertising of the former is ron vs representations made about their product so which is it both its i spoke with conduct of the practices argue that at the at the hearing at the district court so our argument has always been that the two the practices and the advertisement are are lazy in such standing needs to be evaluated with respect to  arguments made that the husbandry practices were unfair i thought that the misrepresentation in terms of the false advertising was still really core to the unfairness claim because the unfairness is the fact it's public statements about it's practices caused be it caused the appellant's to divert resources where the district court erred is that it created an artificially narrow view of article three standing because it basically said that the content of the diversion of resources so what the appellant said in response to sanderson's public statements must specifically mention advertising versus the practices that are of a content of the advertising on standards and practices but not the advertisement and that's where the just report aired because it created a subject matter nexus between the article three injury and the claim versus just applying the fairly confirms that unlike every other major chicken corp chicken producer at that time it would not reduce or eliminate the use of antibiotics and this newest public statement called antibiotic free meat a marketing gimmick and it criticize other at or they reviewed its brand new deceptive ad campaign about said two hundred and two and then they diverted resources by publishing blogs sending e mails to hundreds of thousands of members with a call to action to dumpsters and farms they posted on social media about sanderson's business practices and they had strategies on this issue is it just a question of the week because weren't there a prior established campaign outside of this relevant period that the district court found i think  they was at this time that they did they increased their diversion of resources so they they spent additional resources that they otherwise would not have spent but or sanderson's public statements they had for the st time called out sanderson farms in it's in it's in their public statements and they increased the amount of to have the resources and staff time that they were putting toward this issue and moreover because anderson farms was that was the last holdout of all of the chicken companies not organizations who sued sanderson in th alleging false advertising did not suffer injuries that were fairly traceable to the conduct that they were challenging below which again was sanderson's allegedly false advertising and therefore they lacked article three standing to sue in federal court that decision was unassailable and should be affirmed not only detract well settled legal precedent for article three from both this court and the supreme court but perhaps more important to this appeal the district court findings related to jurisdiction which were in its purview at this stage of the case were not clearly erroneous as this court requires that is they were not illogical they were not implausible and there were not without support from the record those fact of terminations were right at the heart of the district court's discretion and they were not clearly erroneous if i could zero in on just a few points at the outset the st is i want to dispel the notion that this was anything but a false advertising case that's all it ever was from the opening day that the pellets filed this case they issued a press release touting that they were suing sanderson for false advertising and that continued through repeated judicial statements in pleadings to the magistrate judge to district court judge even to a panel of this related to a discovery issue in every single pleading before their opening brief on appeal they characterized this case exclusively as a false advertising case and judge mchugh and you hit on the key statement in opposing the very motion that plaintiffs are appealing from now they stated this is at eighty to eighty one and this is the question that they and they themselves as to just record to answer the question is whether the false advertising frustrated plaintiffs mission and whether plaintiffs diverted resources as a result of the false advertising that was the question they asked the court then review to tell discovery record good in over fifty exhibits and determined again in a well reasoned opinion the answer to that question as a fact a matter was no and again if you look at the complaint itself you need look no further than the opening paragraph of the complaint plaintiffs bring this civil action for declaratory an equitable relief under california's u c l and f l challenging sanderson's defendant sanderson advertising of its chicken products as one hundred percent natural if you look at the very st substantive paragraph in their u c l claim for relief this is paragraph eighty four dollars it's that in the excerpt the record sanders engaged in unlawful unfair and or fraudulent conduct under the california u c l by advertising its chicken products as one hundred percent natural we don't dispute that sanderson's practices are relevant but what they're challenging here is the misrepresentation the alleged misrepresentation the broadcasting that which the public statements that sanderson is making are vi are different from the practices themselves that is all the case was ever about and the reason that is relevant is this court's precedents of the supreme court's precedents talk about talking about the smith case from two thousand and four the appellant's need to demonstrate a diversion of resources to combat the particular conduct in question all the particular conduct in question ever was in this case was false advertising the nd point i'd like to make upfront which sort of dovetails with my st point is that anything that happened prior to august st two thousand and sixteen cannot constitute a diversion and just thomas  was was clear on that oral argument for the district court this is twenty quote we would say there is no diversion of resources before august st two thousand and sixteen full stop no distinguishing and the reason for that is that was the date that  and fifteen and started started doing certain things at that point time that only reaffirms that they continued on a consistent rd through line all the way through the case before they knew of the advertising and after they learned of the advertising and  district court noted there was a complete lack of contemporary documents or other evidence that remotely confirm that the few activities that they point to from after august st two thousand and sixteen were traceable to sanderson's advertising i believe in the in the briefing they referred to it as a direct attack or a push in response to the ads and that just wasn't borne out by the record i was again squarely within just records purview at this stage of the case and you know for instance there were no stuff like internal emails with any other organization saying hey check out check out sanderson's new ad campaign we really ought to do something in response there were no internal memoranda no internal reports no briefings to leadership no minutes of meetings or calls or anything like that there was a suggestion in one of the declarations which we think were improperly submitted in violation of a pretty expressed discovery stipulation in the st place the but there was a suggestion that one employee had repurposed his time there's simply nothing in the discovery record that confirmed that no time records no e mails no phone records no reports you know nothing at all and the district court again this was at a stage of the case it was after fact discovery had been concluded and this was what is known as a factual attack on subject matter jurisdiction brought under twelve b one and at this stage of the case the th circuit is very clear that the district court becomes the finder of fact and can resolve jurisdictional disputes related to is is should the case be analyzed simply as the district court weighing the evidence in connection with a jurisdictional attack or does the sham declaration principle come into play here well we think that that we should prevail either way under either test we think the fairest reading of the district court's opinion is that he did take the declarations into account he reviewed them in various places and just held that what they said it was both inconsistent with the deposition testimony and he also had a statement i believe on page eight of the opinion that they were not corroborated by page seven of the opinion not corroborated by the record as a whole so again the district court was permitted at this stage and the other thing i would note at the last stage of his last page of his opinion page nine you know we had raised various ever what we call evidentiary challenges to some of the evidence including the evidence in the record establishes plane of standing to sue and that would include the declarations because which he cites as as example one right there again at this stage the th circuit is clear that in response to a factual attack the district court can resolve factual disputes for itself when the facts that relate to subject better jurisdiction or an injured intermeshed with the with the merits of plaintiff's claim and that's certainly the case here that the merits of their claim relate to advertise sanders s advertising and if you listen to that even today relate to sinners practices but that has nothing to do with the entirely separate question of what did appellants as organizations do and again the th circuit is clear we have the lady  and you know and i think that the cases that the appellant's have relied upon here reflect that there has to be something new there has to be something additional the most recent presidential opinion addressing rd party standing was last year's opinion the american diabetes association case and i would note that case came out about seven weeks after judge keyboard's well reasoned opinion in the district court and it might as well have come out before just judge seabirds opinion because it tracked the exact same standard track the exact same rules in fact both judge she borgen and later job judge hawkins in the in the american diabetes association case used the term business as usual to describe both both organizations activities in both cases and as the court in the american diabetes case noted that you know the only resource out allocation that the organization had noted in that case was something they were already doing already and so you know plaintiffs here are self described advocacy organizations and the you know few stray references to sanderson that they identify from those activities just recalcitrance sanderson farms blog and i said no i've been involved in this case for a while i wasn't aware of a blog like that and i looked at it and it was the same exact thing that they had provided to the just report that the district court had the opportunity to review and address and it's quite frankly you know nothing of the sort the blog post that they identify is titled one hundred percent of mcdonald's chicken now raised without antibiotics the entire blog post is about mcdonald's a restaurant that sanderson has not supplied chicken to in recent memory certainly not this century and you'd have to go all the way down to the th paragraph of this multi page blog post for a single reference to sanderson and  reimagine activities years down the road point back in time and say those are fairly traceable to the advertising when again there's nothing in the contemporaneous record that was all you know laid bare before the district court that that confirms that and so you know in our view your honour's unless you have further questions at the end of the day appellants you know me brought allegations at the early stage of this case and i want to be clear you know miss motion to dismiss this this isn't a case where the district court didn't give them their day in court and didn't give them their opportunity to be heard at the pleading stage yes he found the district court found that they had broadly alleged eight plausible view of diversion of resources standing but after discovery the district court was no longer required to just rely upon those broad allegations and instead was entitle to take the entire record under review under this court's clear president  and it determined again as a factual matter subject to discords substantial deference that the claim diversion of resources were not traceable to the challenge conduct here which was unequivocal he threw out the case centers and advertised  further concluded that upheld attempts to sort of reverse engineer rationales for their conduct through through their declarations which again were not supported by the rest of the discovery records were were were improper and the just records decision in that i was on you thank you your honor i'd like to point to the theme of what mr quick is saying because it's absolutely relevant to our argument on appeal mistake with keep saying that the conduct or other publication or any any advertising device or by public outcry or proclamation or in any other manner means whatsoever including over the internet any statement which is untrue or misleading now we have identified that i'm august st twenty court to the supreme court and due to power and then this court's precedent in the desert citizens against pollution be business because both of these cases are relevant to show that while something needs to be fairly traceable it doesn't have to have a subject matter next says i what mr blake has tried to require here is a subject matter nexus between the injury in fact the article three injury in fact and the cause of action and said i've just been traceable to hearing off of that here the diversion of resources talked about practices because that was in the public interest groups idea of how to best counteract the effects of those statements of sanders i was making they didn't call out centers and for all the advertising but they called out their practices as report's application of law here and i wanted to understand what your position is so you're not challenging any of the district court's findings and simply the legal conclusions that come from those on exactly the just report found that certain activities did not specifically mention advertising and were not challenging that fact with but we have never said that i need the diversion activities specifically mention advertising what we're saying is they didn't have to mention advertising to be a diversion of resources with my remaining time i'd that at this stage of the litigation which is essentially the summary judgment faith of litigation the court is not to make a credibility determination at this stage of litigation and the proper course of action would be for the court to have an evidentiary hearing allow for cross examination of the witnesses if hearing no we did not but it would be the proper course of action because this report didn't see the evidence in the light most favorable to the nonmoving party which in here w