that you can't have an injunction which prohibits plaintiffs from truthfully advertising that the configuration works in general and the plaintiffs have installed this configuration for over twenty five years with a lack of any reported  failures and that's something that the court in its own decision indicated were the facts that they and that they should be able to however hear the court by stating that its ruling on the measured zone  a seventy eighty a couple of them are in me are in the specific numbered paragraphs and there's one in sort of the preamble of therefore it is ordered that if we deal with those with those requests to talk what language you would like to see buying this was not a comparatively advertising case it was a literal fall to the case there was no record evidence here of any consumer confusion that would be necessary to buy or comparative advertising it was not in a compar advertising decision but if the falsity is yours protects more than the other then isn't it isn't that seven eighty itself in fact doesn't have its own measure of sound and that measured zone if you look at the record at page at page excuse me of page thirteen i'll remove the references to seventy to remove the references to seven eighty and to allow us to affirmatively state that our our our configuration is based on historical experience if we cannot advertising that our configuration works in general and has been installed for over twenty five years with no no systems and no we don't see the relationship between safety working bits between being able to advertise that it's safe and it works and you know what you're objecting to which is the standard i to install a multi point system this is not a multi point system this in most instances is a singular point system that depending on the configuration but the configuration itself is something now we should be able to advertise and the way the way this if we look at the arguments made by east coast the vagueness and overbroad list of those requires us to impose the system that we're in competition with rather than our own let me go let me go back let me go back to the injunction so i can try and figure out if it will help eliminate the legal arguments i'm still trying to figure out what language it is that you object to if the language in paragraph one is the is the language that you that we have previously discussed that is greater than the systems identified in a co within a few seventy eighty is that the only language is that the language in section one but that you find offensive they added that is the heart of the offense ok is that the language that you'd like stricken from paragraph one i would like to add language stricken from basically the language that we cannot we cannot ever ties is only protection greater than systems installed in accordance with an f p o seven ok all right now we're going to call section one no no no so you want if you want to be told that you're a measured zone they are may as they are ever ties in and showing what they are advertising is the configuration of the system based upon our twenty five years of experience let me ask you the party testing measure proportions of our ever ties with the said we protect against open spaces like being open spaces those were the only things that were found to seal in other words as to paragraph one what you want is to change the word measurable t we had before hand with regard to the motions no what i would want is that you submit to the court what that local rule is yes runners also let me ask between july two thousand and one and july twenty second of two thousand and there also were once an appeal which actually was successful and that's one of the points we're making here we have made no decision in july i my primary reasons for making the decisions when he said it were successful were successful for who against us doing in traffic in the end and not opposing that motion at that point in time was evaluating the summary judgment motion and making our decisions as to how it was that we were going to focus our case for trial when we saw the and we were required actually on reconsideration once my clients were saying to disclose attorney products are our thinking and our reasoning when we saw that they were not opposing that they were not going to pursue certain motion excuse me certain counter claims with respect to their lanham act claims we then knew that we could simplify the case and keep certain facts issues out of the case which might have confused the jury and that was the primary mover in our decision making there was in part that the fact that we had a one point six million dollar verdict but that wasn't something that was sufficient for us to make the final decision because it still wasn't final and as i just mentioned that that verdict eventually was overturned as one could expect as an attorney that that can happen and so to say if we are going to you were and actively considering your my are your options in the light of changing circumstances throughout th whole period exactly and one of the things that really affected the ultimate decision was the summary judgment motions which i evaluated when they came in and made my decisions based on that as we always do as attorneys and this this would set a morning your honors my name is beth fields and i'm the lawyer for east coast lighting equipment and i'd like to talk about the injunction and and the sanctions as well i want to start out by noting that when rod one rod can be used in place of dozens and even hundreds of rives in a conventional system that has bonding from roger on down and down i think  keep the violator from violating further the f t c which of course looked to me in in the reviewing injunctions talk about fencing in provisions these people have advertised their products protect in open spaces and to is one run every three hundred eighty thousand square feet that is a specific and measurable range of protection so that if their systems systems meaning one rod are install one every three hundred eighty thousand actually three hundred seventy eight thousand plus square feet that means that they have to rely on unproven un verified radio i have protection which the courts specifically found were not  configuration at all but the system itself is one that purportedly has enhanced powers and can protect huge that asked anchor seven acres and that is what thout the injunction that language that she would like stricken my understanding was that she was prepared and in their proposal and their own proposed injunctive language they're prepared to concede that they cannot advertise that their terminals provide a measurable judge just maybe they wanted the word measured instead of measurable zone of protection they're willing to concede all of that the question was whether they would also be prohibited from advertising systems installed in accordance with  i understand it from here is that the district court didn't make any findings about about n f p a seventy eighty and so they'd like that language stricken because it's overbroad i haven't heard anything yet that you've done to address  that if you have a system that works to some degree why can't they advertise that it works to whatever degree that it does work because the law says that you cannot make specific representation product that can be installed one every three hundred seventy thousand square feet and not have some sort of science behind it to back that up well there there is evidence to the record that indicates that the case for example that quote from the report from the national and technology it concludes that it's nearly impossible to make a qualitatively meaningful statements or judge just about the performance of the e s b device in comparison with the conventional franklin rubs which means they should be installed in the same configuration or give us a reason written they if they go out and get the study that shows that they can't advertise it by because of this injunction i'm sorry but if they've got the proof that you say they don't have they can advertise it under this injunction well i think that they went through the n f p a process time after time study after study well there's no difference between the rods and there can be no basis for deviating from the standard and that's why the language seventy eighty is in there that's the basic standard it doesn't say they have to conform to seven ty it just says if there's going to be a deviation from seventy there needs to be some science and the way they're recommending their configuration is not based on science and to say it works they have no evidence it works other than their are based on a scientific but he does make the finding that it doesn't work either stand how she can make a finding that they can't advertise that works in some way shape or form here's what she makes he they don't perform as advertised now if you want to say that means they don't work we can work was not used in here what they did was say you can't advertise a product  but they want to be able to advertise their configuration if i owned it and i didn't understand exactly what that meant if i understand what you're saying the configuration is the configuration of standard lightning rod is that it has to be there have to be lightning rods every twenty feet and they have to be properly grounded where is the configuration that they want to advertise is that you have one lightning rod for every forty feet or fifty utilizing air terminals that rely on calculations of enhanced range of protection if they argue that you can put one every three hundred eighty thousand square feet that's a calculation of an enhanced range of protection so they can't make that recommendation of  different then if the configuration is different how can it protect the way they're saying of the reasons was the fact that they had won a verdict in the new york state court but that verdict wasn't a final verdict as i believe that was final but more importantly she's indicated that that it was reversed on appeal so how could have been a final we were defending claims that were made that let me assure you that between the time of the july of two thousand when we supposedly the you know they should have woken up as to as to the viability of those claims and the increase the cost and be vexatious i believe the desirous of court found was manifested back a year and even more years ago when they knew that since these cases really did make a finding after that she said the fine and she made was that certainly as of july of two thousand and one discovering the mass and i said if they had opposed to him three and four would they have been sanctioned other words would judge silver have found that even if she decided the issues against them with a she have sanctioned them point well i don't what basis and if that's reconsideration and i did explain my my reasons and you know again i think that the sanctions should be overturned but i would like to focus primarily on the injunction again i'd like to make it very clear that configuration does not imply a measure of zone these two different systems have there each what do you mean by configuration i think the best way for me to understand to explain it to you is to explain how these systems are designed each just system is designed specifically for the particular project we have something called a manufacturer standard that we use in our ever ties ng and the record of pages fourteen zero six to fourteen twenty the system is designed for the building and for the system and i think that if we look at the i mean we've been told here that seventy eighty is two and the whole the whole there's an entire scientific article at eleven eighty two eleven ninety one the theoretical justification of the conventional probe this is going to skew seventy eighty is fairly crude in part due to our incomplete understanding of light attachment to ground based objects hence the fact that the conventional lightning protection systems have a history of success in preventing a none of my or minimizing damage to structures is the primary justification for their use it's not scientific neither system we're not we're not saying and we're and as we've conceded we're not going to base our advertising on a measured zone but we should be permitted constitutionally under the first amendment product versus the numbers of their product do the same thing in the end they're saying that it doesn't there's no evidence that it is so therefore you say your should be allowed to advertise that there is you know you can use one for like seven acres or some like that specifically said in her decision that we should be permitted because we should be permitted to do truthful advertising now we heard today that that that that our system is on stake twice we've been in litigation for over ten years we've given them our entire list of customers our entire list of projects they haven't come up with one single and there is no lawsuit in this record the only lawsuit in this record was a lawsuit that was referred to in fall testimony