all right our nd case for this morning is benson against fannie mae confections brand so good counsel for that case up to the table is likewise arguing that no such course of action exists so the question is did we in the amended complaint satisfy the pleading requirements under both rule eight and ruled  so we're we're not in any way deviating or right rescind our claims as to what so what i need you to talk about my colleagues have other issues is how in your complaint have you indicated that there are any damages to your clients caused by the fill ratio of these boxes well the slacks still if you enrichment one of the things you can look at is is it appropriate for the defendant to enjoy the benefit of a bargain but change through deception but i want to know maybe i'm being  and somebody picking up a box would know if it weighed roughly seven ounces or five pounds or you would send some reasonable range and there was candy in the box and as far as i know the recent there's no allegation that the candy itself was spoiled or are defective what damage when you open the box and you say gee this box is only half full does one suffer well what we've alleged is that we would not have made the purchase what they had we had we did that there are there's two aspects towards the packaging of of goods for consumption there's requirement that the weight has to be there a four inch box is not ok how much helpful to have to be big the question is it's facts specific to the product and it's a question of what's the reason for that space is it because there's going to be settling or is it because you don't want the goods to be damaged and transportation so there's no hard and fast rule about how much space there should be it's a question of whether it's functional space or non functional space that anybody who has even as much as one percent nonfunctional slack still has violated the regulation and therefore can be sued under the illinois consumer protection statute either for  deceptive or unfair practices no no that's not our siri when i say that had to beat full to the brim what we're saying is the amount that's here was not sufficient for it what's the rule that you want i mean i'm saying we go through all these requirements one from one through six that are the functional one spread out so those are reasons why you can have something filled less than capacity now you now you have a box and in your opinion there's no tolerance for any non sanctioned slacks no we were not saying that we point out to i mean what's a rule i there is no rule but that's what trials are for the trial would be what was the necessary amount of slack phil it should have been in this product that would be reasonable that would not mislead a consumer and that would be sufficient so that he didn't get musketeer they don't say give me the seven as i don't know what the weights are they said like the little guy the medium or the large and we're conditioned to do that as consumers because thanks to see a far twenty one one what and what i'm talking about are questions we believe for a jury to decide for a jury to decide what was deceptive so let me go back to the question of damages here is i have similar concerns about th purchase price equal to the percentage of fictional functional slack fill in the product there right we do allege that yes ok is that means that the theory that if if let's say half of the slack phil was for seven ounces of chocolate and you got seven ounces of chocolate for ninety nine so you're actually arguing for a windfall it seems we're not your honor and it's and as i said there's an allegation that we would not have made the purchase had we not gone well then that's not a percentage theory that's a full ninety nine dollars well i'm just in richmond as a remedy that that can be tailored by the trial court and one of the ways that it can be calculated is we're not looking for a windfall we're not looking for ten dollars back but one of the ways you can calculate unjust enrichment is you look at what was the benefit to the defendant that induced somebody to buy a box that didn't contain all the chocolate that they thought it like so under that theory  established on judgment fun just meant and rich meant calculations you look at the benefit for the defendant what was their profit and selling we are absolutely not looking for our money back or margaret you know  thank you honors and good morning on behalf of fannie mae the apple league may please the court i'd like to start where the argument just left off and that is what the damages questions it is undisputed in this case is that plaintiffs did not allege three think congress gave those instructions to the earth to protect consumers from deceptive packaging well from a regulatory perspective absolutely but what plaintiff has to do here is they have to translate a regulatory into a state law assumptions and determined that it wasn't based on i'm out and they have to recognize that there could be large amounts of functional slack phil so the examples given the federal register are sixty three percent for a candy bar forty three three percent for package my concern just to cut to the quick from your position is i don't see how anyone could ever bring a slacks case as long as the box said you know there are seven ounces of chocolates or there's seven of pens are there seven ounces of whatever is in the box and you could have a giant box with not very much in it and people would think i've been misled so i think it would take consistent with the also a court decision in the southern district of new york said in our great that it would be an exceptional case for it to survive a consumer protection statute not that it wouldn't be enforceable by the f d a and the examples essentially making an argument this is one of those things that only like that and some of them are very small and dense so they're they're just different but their argument is you should put the small and dense ones in a box it's appropriate to the size people realize what they're getting i mean they don't as to the damages piece your honor the plaintiffs can see least in this case that the slack will percentage did not affect price that they're not asserting that they had a slack still affecting price so one could imagine a situation where a retailer jacks up the price based on the box hoping to fool the consumer into believing that it's you know there's more there that's not the case here we have accurate disclosures all across the board in this particular  question that the judge should decide as opposed to a jury looking at all of those things that you mentioned and saying you know a rational person wouldn't be deceived by this particular box  also worried about your position on the rule a rule nine be materials up to the point of causation and damages because it seems to me we are still under a notice pleading regime  host we find out exactly what these people are complaining about what they spent the you know the who what when where why how you know all of those questions are in there it's just as a matter of law if all the rest of this stuff is disclosed can you show under illinois law that the risk is or you know a deceptive practice or there was you know an unfair practice so i think i think it starts it will be six age at the at all question applies ability if one is alleging deception and the law requires to look at the entire context right in the deception you have your nine requirements and they they said we pleaded all of that stuff and they keep pointing to this fourteen ounces box as their evidence that it would be possible to have anonymous leaving the st instance there's there's two flaws that the district court in our opinion correctly recognized as to their it paul pleading the f t c a violation in the st instance slack phil is expected to very amongst product lines and cross products even plaintiffs and admit that slack phil varies so one has to account for the slack the variation beyond just simply taking a ruler to one box and a ruler to the other and inferring therefore that you have a violation separately if you are going to do a comparative  have to plead more here they would have to do some analysis there was no analysis of anything about it not even on information belief which would have been the place for them to go had they needed to have additional facts and then they would have had to plead the basis for their information and belief that's entirely absent that they don't go there at all they simply say here are two boxes two different sized and therefore infer four of the six standards for functional slack fell that is insufficient then they go on to go into the state law claims and ask this court to ignore it have the consumers ignore clear disclosures of quantity and not just one we have the clear disclosure on quantity of the weight we have the numerical counts of the candy pieces themselves we haven't talked about the receipt yet where they specifically get the receipt that says seven ounces of candy at nine dollars ninety nine cents if we get past those issues we get conceded it didn't affect price whatsoever there's no allegations that there was any defect in the candy anything they could have purchased it elsewhere or any of the other elements that this court has addressed in both the commands to decision and the  gym versus carter decision and those are similar in so far as take a master you have a person buying two shirts and getting four for a total of six shirts they think they're getting a deal they think they're getting more bang for their buck th court said no what was the actual value of the shirts and where plaintiff doesn't allow or challenge the actual value of those shirts there's no damages converses card is very similar you have you know both in both of those cases the consumer would have her hands and could see exactly what she was paying for the consumer could see the shirts or could see that the children's clothes for sure but they still thought they were getting the concerns me  s in essence at least my understanding is that every detail of consumer packaging is very deliberate right size color color  size of font choice of font what photos are used shape of the box everything right depending on the manufacturer presumably there are companies that to test all these different variations right depending on the company right right so don't we have to assume that there was a pretty deliberate choice or at least we can infer there was a deliberate choice to go with this pretty large amount of slack fill in these boxes no i don't think so because that presumes non functionality not in for a deliberate mis deception and misleading of consumers well i think it doesn't make much sense for the following reason and i think the f d a supports this if and the f d a says if a consumer is unhappy with the level of slack they want to box they can avoid the box going forward now that's a practical matter i'm talking to the market can work that way but we also have plenty of experience for example in trademark law that with low value consumer purchases and swimmers don't pay that much attention to all the detail disclosures that are made with the slight differences in marks and so on i think i'm making a slightly different point than the manufacturers perspective which is where we're talking about inferring intent from if the manufacturer is making their consumers unhappy when they open the box and they're now unhappy they're losing future sales they're using additional cardboard in resources and cost in the packaging so i don't think it's necessarily we can nestle in for intent on that so we should what that's a pretty good argument for saying we really don't need this regulation right well we certainly don't need plaintiffs in force ahead when there's no damages regulation and yet we have it i certainly don't think i would like to take on whether or not the viability of the regulation here for this purpose of his appeal it's sufficient the plaintiffs have failed to state a claim or state damages or state that they can actual claim of deception and then they waive their other claims etc and we've got individual defenses on their state law claim so i think the court rightfully dismissed it and i think if if a judge hamilton you believe it was not on a  f d a could send people around assuming they're for cers and require manufacturers to reveal how much empty space is in boxes correct but i stand here today your honor we're going to ask the jury to refund us the profit that the defendants enjoyed because we purchased a product under misleading circumstances and that is a well established theory of damages