language was confusing to consumers and that frequently the fine print seemed to take away with more conspicuous print indicated so they made certain consumer rights immutable that were guaranteed regardless of what  its workmanship and materials and then regardless of which of these definitions warranty fell under has to be the basis for service contracts on the other hand  warranty is in place they're essentially going to do with other things that a service contract does because the manufactures main warrant or it's after that warranty expires but they indicated on the document that they moment i was looking in your short appendix for the judgment that you're appealing from and i didn't find it i believe it was towards the is it clear that all claims have been dismissed with prejudice yes if you certified that your appendix was complete i'm looking at the short appendix table of contents i don't see a judgement sorry that for what it's worth i'll just tell you that is a major oversight is for this court is concerned because of what it means for our jurisdiction my my apologies your  contract as opposed to agreeing with you that it's a warranty you've argued that we shouldn't defer or give any kind of deference to the f t c center protection did you make that argument before to you there was a i don't know what in your original brief that said this shouldn't apply because of the the timing the timing of the purchase was before the regulation w in the c f r but the interpretation still existed prior to that so my question is have you waived your argument of lack of deference because you didn't raise it with the district court so the question is not are they advice or the question is the deference you're arguing for us that the court should not defer to the f t c center protg sion i didn't particular argument being raised before the district is actually at stake in this case about the difference between the the geek squad protection plan as applied and followed by the defendant and what you think should have happened under the your clients about the value sure for the depreciated value that is correct and much was then i don't know if you know ok so they were not being g helpful i think it's very helpful to the argument not only does the language of course reflect but it is warranty but if you look at the receipt which the parties interpret or the receipts it shows that the items that are that's an enormous sum and you're told by the off store manager that it's only going to last about two years before it's going to start having problems you're not going to buy their televisions that was you can get some insurance and you're not essentially buying a for to your peers for that enorm money so that basically you know what we can do is we can give you a just count on the t v if you also get this extended warranty that's going to help make sure that this television works for a full five years and that are forfeited and you're going to be charged those extra mounts for what you didn't return so really as a reasonable consumer men would look at this as a single purchase items bottle to be a single purchase and if you break it up you lose the value of that negotiation because certainly a bargain between seller and a fire is a commercial transaction which when you talk about what incentive true under the u c c but the f t c interpreting regulations have made a determination that as long as the consumer give separate consideration other than the purchase price that it's a service agreement but extended warranties are not freebies you're going to have to pay extra they said you know just throw in an extra ten dollars and we will give you the sixty ended up warranty that adds another three years to the warranty and then when that there's a dispute about  it and go to court and say one spent an extra ten dollars for this extended warranty so it's not really a warranty it's really a service contract because that's what the f t c says that doesn't seem to really protect the consumer it certainly doesn't seem to meet the minds  had when they entered into that contract and so there seems to be a real separate document a separate transaction with respect as it did you can look at this is when just purchased a television and they purchased a protection plan really if it was one final total but the bargain they had was a bargain to purchase a television and a separate bargain which resulted in a written contract for produce and they all it set a separate bargain when it's bundled together when the pricing is dependent upon the other but the pricing wasn't truly depend protection plan bundle if you look at the receipt and and i will is that you have to do a little parsing to do this of the protection plan underway and included also delivery it included a particular amount for the television that included the installation of the television and that starts i testified on the receipt as g s t bundle so it wasn't simply that the protection plan and television that was rather protection plan bundle that included items that were purchased when the child had it was all that sounds pretty factual unless you can rely on the separate consideration requirement of the of the regulations what's what's the basis for the f t c as i understand the simultaneity requirement in the regulation that makes a lot of sense to me but i have trouble seeing and we haven't been able to find the origins of the of the separate consideration requirement or no separate things like that i see the separate consideration requirement really as creating that at separate transaction it separates the written warranty coming from the manufacturer with a separate service plan provided separately by a seller let me let me let me try it this way suppose best buy offered a virus choice between the three hundred disks three hundred dollars discount on television that carried the manufacturer's warranty only in the full price television that came with the free geek squad point of would the service plan be part of the basis of the bargain for a full price television under those circumstances i don't believe so because again the consumer would actually be thinking additional amount of up with the selling price would be to get the geek squad protection plan there would in fact be an additional consideration so even though the receipt would show none yes because in fact the consumer would be paying additional consideration they could have purchased it for less but to obtaining that they had to pay more so we'd have to go back and revisit what the options were for the for the for the consumer is that right in that scenario yes you can just look at the  receipt do you agree that the geek squad protection plan can be both a service plan and a warranty under the act if if there were no separate consideration paid no i do not  makes it clear that it is a separate service plan it is in addition to the manufacturer's warranty it is and that includes does it include warranties of performance and lack of effects it does not want you to a product is free from a defect suppose when you when it went to somebody selling a television set the manufacturer offers warranties for thirteen and five years at different prices then mean they're not worn the three in the five at least are not warranties under the act the manufactured can offer that warranty and that essentially representing that if you want to television that will last one year this is the price one dollar that we will hear and see the last three years this is a price in those five years this is a price that doesn't add doesn't that turn it into the service plan or at least defeats the basis of the bargain under seven hundred  thought i would argue that what they're doing there is representing that it will be free from defects for a certain period parts all around at some point and the manufacturers simply agree to stand behind the parts for a particular period of time ok you've got me totally confused with that be part of the bargain let's say the person who buys the five year warranty for an extra price how is that part of the basis of the bargain and the geek squad protection plan is not to the extent the manufacturer is saying we will warranty this television to last for five years or a particular products and awards you know if not and if not we will repair product a television with a one year warranty versus a television with a five year warranty those are two different products what if they offer you a discount if you'll take it without the warranty and it was  definition says part of the basis of the bargain so as i say i understand the contemporaneity requirement i have real trouble understanding separate consideration given all the different ways you can mix and match prices and as arising from the idea of what is the bargain and how was it were derived clearly if your reference is to purchase simply a consumer product that's one part and purchasing a separate warranty is another park and what they're doing here is noting if there's additional consideration for something else something extra and if i buy them together i get them both for less than the list price for it and well it is in this particular circumvent the act and i believe it's a sin to circumvent the act i think the bright line rule makes it possible for sellers to figure out whether they are providing a service contract which is governed by protection plan and we refer to it as a protection plan not as a warranty i understand the where is make the claim that they were told this was a warranty as a district judge held in the two shit case in florida is best buy wants to compete with other retailers and says we'll sell you the samsung t v with the manufacturer's warranty and we'll include the service plan  section plan and no extra charge so no separate consideration simultaneous is it a warrant at that point if there was no separate consideration and it was simultaneous transaction it is simply because a warrant so it also be a service for them right because it has elements that protect things beyond what a manufacturer warrant this a little a little more complicated than lately with automobiles and such in fact is i think one of the important things us under the mattress must learn tech when they talk about a refund of the consumer it's not a refund of the full purchase price it's a refund at the question for the fact finder and and that is really the key thing about this on the  to some later time but i don't think the separate consideration mixing difference there and so on my contention is that matheson was makes clear that either you have a warranty that's defined under the act or you have a service