enterprises also known as the little giant ladder company may have placed the court wing is asking this court to reverse three decisions from the district court the st is a summary judgment decision that was based on an alleged lack of evidence of materiality in the false advertising claim the other two decisions excluded two surveys commissioned by wings expert witness helper it it's important  from the perspective that originally tried cam challenged the expert opinion the doctor blahs wick which found that try kempe bladders do not satisfy the industry safety standard under and  the american national standards institute they don't reiterate that challenge on appeal they no longer raise their alleged compliance with ansi as an alternative grounds for firm and so it's proper to view this appeal from the perspective district court committed was the district court found that no reasonable jury could find that a statement about a latter's compliance with the industry safety standards under ansi could be material without direct evidence of actual consumer influence that is the way the district court applied the relevant standard i think the better question is how could a reasonable jury not conclude talking here about two remaining allegedly false advertising advertisements or is this the gorilla dot com situation still in the case  or is that out of the case your honor i think technically the gorilla dot com is only in the case for the brief period that it appeared after filing the complaint or the brief period that it appeared u ntil it was taken down after we filed our lawsuit there were a few months i can't remember the timeframe but eventually tried camera moved both and see an osha from its own website i think primarily the focus is on the home depot dot com statement and on the label statement on the side of the latter although so those so those two statements both refer to some kind of combination of ansi and taking as i've given which i think we have to that it is not properly in this case because not because of the magistrate judge's ruling  that it was not played in a timely fashion we have to accept that there is no charge in this case of falsity as to osha compliance if that's right then why is the question not not the following  was there evidence from which a jury could reasonably conclude that n c compliance independent of osha compliance would matter to consumers i think there is your honor st of all i don't think the home depot dot com statements are combined and osha statement there is a line item on the website that says certification the warranty and it says an changes my focus why isn't the question whether consumers would likely be influenced on the assumption that osha compliance was present buying by a statement the case that consumers understand what anssi is as an industry safety standard and whether or not there's osha compliance if consumers consider compliance with industry safety standards important and they find that one letter will not comply with ansi then that is enough for a jury to reasonably conclude that that can have an impact on consumers try camps president jeff scuba testified they would never market the latter with out and see compliance that's that's undisputed and it's because he said if consumers are going to compare ladders we want them to know we comply with ansi he didn't say i would never market a letter that wasn't osha compliant and that's because in the industry it's also undisputed the general practice is the only way these latter manufacturers comply with o ses survey does show a significant number of compute consumers recognise and see and understand what anssi is that is the data from her survey it also demonstrates that high percentage of consumers will read the side label of the latter and remember that the side label will indicate compliance with safety standards to the other point you raised the case  y the law recognizes that you can prove a likelihood of consumer influence with indirect circumstantial evidence it doesn't have to be direct evidence of actual influence and this court decisions as well as a circuit decisions will recognise that the manufacturers intent if the intent in the advertisement is to influence consumers a jury is allowed to infer from that that it's likely to do so and that's where the evidence is relevant if if the industry itself for example mr hamlin is the he was the head of the labeling committee for anssi he said the purpose of the n c standards requirement ansi compliance be on the label is for consumer notification that's the purpose the industry put in the standard it's not just that you comply with that but you have to label it as compliant for purposes of notifying consumers and mr scruby said if consumers are going to compare our products to our competitors who comply with ansi we wanted there if you've ever been on dot com you can click i want to compare a little giant ladder to a gorilla ladder to a worker ladder and then you can scroll down and compare all of the different line items of the specifications of these ladders and one of the line items  and if a consumer sees an see certified on one and there's no in the certified on the other that could influence consumer decisions and the fact that tried him with its decades in the industry feels that that's important that they would never market a letter without ansi that supports an inference that consumers are likely to be influence and that's the important part of that standard and the federal law around the country  the the vast majority recognize that in some cases some cases you can show materiality by reference to the nature of the accused statement itself and the context of the product being advertised particular survey data did not present a genuine we should material fact actually that's one of the problems is once the district court in the district court's opinion one take it got through m surveys and excluded them and proceeded to address the additional evidence of materiality we presented outside of mr pratt surveys the district court never acknowledged dr treats a survey as part of that evidence the district  court didn't even acknowledge that we had raised that as independent evidence of materiality which is one of the errors we ascribed to the district court in our briefing i hope i heard the tone that i'm into my rebuttal time if there's no other was the question was why is that create an issue of fact the issues there are the problem with that is the survey that dr tree she performed never showed any of the  themselves and that has to be what is material to consumers so the fact that consumers might know something about ansi or might know something about osha isn't material to whether or not the actual statement would would likely be material to their purchase decision and that's why the court was right to not look at the tree see report as creating an issue of   consumers said they looked at the side of the side of a ladder and they recalled certain issues safety weight rating and so on and so forth but but again if we look the details of her survey what's didn't get into what she said was i think the number was one or two percent recalled and say using a proxy here of safety which is what w would likely influence purchasers dr treating never show that to purchasers so we don't know what we're doing here and what wayne has done quite well i think is to argue a proxy for the actual statement they've moved away from the statements and they said well it was about safety and everybody cares about safety so it's material and that's not what the law requires the law requires that you look at the specific misrepresentation and ask that is material to consumers and and nobody ever did that in this case there's this is it this is just trying to can i ask you this question focusing just on the importance survey the important survey asked and i think that a pretty substantial positive response as one would expect basically whether consumers care about compliance with industry safety standards i think i've got the language right there's only one industry safety standard and see why isn't that survey announced to establish that consumers are likely to be influenced by compliance with and she standards well i don't think that's accurate that there's only one district court but that's that's what was at the same time as and basically before when woke up to the fact that the ocean regulations don't keep up to date with and cease changes and therefore became aware of the problems in terms of incorporation by reference of but if but if a survey says as has as i said i mean if i think of what i care about with the latter i care about the height but you don't need anybody to tell you about that and i care about whether it's the footing is going to slip and then i care about whether my footing is going to slip everything else pales in comparison so that can't be any possible doubt that safety and footing is is material to a consumer's purchase of ladder and so you need to make a distinction between safety of footing and a particular assertions of ansi compliance why doesn't the important survey create a jury question on that because the issue is is does the actual statement matter to consumers and what we're talking about in the important survey is something else it's a level of attraction higher it's talking about safety and what that does no no i'm sorry it's not the language wrong i thought it asked the question compliance with industry safety standards and so far we've talked about two possible ones within the domestic united states and c and whatever version of and see osha currently has in its regulations there's there's two possibilities why isn't it a jury question whether  compliance with industry safety standards which the survey shows consumers care about is enough to support an inference that they care about the ansi safety standards because what we did by that is we have rendered the actual statements themselves meaningless we're not looking at the actual statement on the side of the latter we're not looking at the latter statement and context that it's in seven five and that is a half inch at best on a forty inch label that it's oftentimes covered up that people may never see this and and those i mean all of that stuff that you just mentioned was not the basis for the district  the district court was a little light and explaining why it excluded that but i think what it said was this the important survey was excluded because mr porter didn't ask meeting the standard of relevance for exclusion how could it not be relevant under the the literal rule for over one definition of relevant relevant to ultimate we care about answer the question that we care about compliance with industry standards for one says a fact is relevant if it makes the point that you are trying to make more likely then than it would be without that fact how can how can it why doesn't that say that particular one squarely covered the importance survey question it is more likely looks at the ultimate statement but the exclusion standard under for one does not necessarily i don't think it's helpful to a jury when the stand the legal standard is does that statement does that statement matter to consumers to not ask about the statement and to effectively render the statement itself meaningless and then say well people care about safety who can argue against that what you've done is just done an end run around the law that is a requirement that you have to look at the the statement and so if you want to say that misreports important survey was relevant then you've just allowed him current ansi standard for the latter steps do you have a lanham a cause of action i probably have to know more but i would assume that we would because why that wouldn't be material in your view would it well the new technology and it wasn't new at all it was only applied new to a different polymer and and there was a customer that was deposed and they didn't ask if it was material they planted and the defendant both testified that they didn't know if it was material to consumers and the court and say well that's different in this case and let's look at three am innovative then the court held him to yalit he considers  and i didn't catch the name of the case which case was that i'm talking about the d m sure sure thank you the the statement that you made when you left off the question was whether or not the false or that statement you can't divorce the materiality argument from the statement itself and you can't label as an inherent quality or characteristic you can't have a proxy calling it  disagree or on i think that there are different issues if you look at the trees the survey she says eighty seven percent of people look at the side of the lab but we don't know what they look at and what we're talking about here is seven  five and we're going to say because you glance these labels located on the side of the latter on a forty against long label while you have eighty seven percent of that of shoppers to consider the of the latter is material to them the issue is whether this tiny statement in the middle of the cited latter label influences them and merely because why isn't that a question for  the case was clearly says you have to look at the statement so we don't get into this exact issue that we're in right now which is not consistent with  circuit law clearly requires any expert survey to only test to the exact advertisement that issue or be deemed irrelevant is not the law neither three m nor any other eight circuit case that there is in fact the law is that an expert survey can provide circumstantial evidence of materiality it doesn't have to test the verbatim accused tendency to make something more or less probable and it's interesting that try can only talks about trees they survey and paresi important survey independently in different areas of their brief seven o two which was cited so far it don't you have to rely on either the important survey or these bits of non survey evidence i don't think so i think one we can rely on the alleged statements themselves under the law that says one way to prove materiality is to demonstrate that the statement relates an inherent quality that's not the issue the issue is whether compliance with n c independent of osha compliance is is likely to influence consumers and i and i don't know how to make that into something called an inherent quality unless inherent quality is a meaningless term well what you have to have is you have to have evidence that consumers are going to see the n c statement and recognize  statement of complying with safety standards and the evidence we have for that is dr treece a survey demonstrates that a substantial number of consumers understand and c is a safety standard we also  have the context the district court even recognized that the context of the statement on the label would suggest ken suggest to a consumer the answer is a safety standard just by how it's written it says manufacture certifies conformance to osha and ca fourteen dollars standards for metal ladders just the nature of the statement itself could support the idea that a consumer's going to read that and say that must be a safety standard and so that evidence suggests that a consumer will consider it important and then if you combine that with the important survey the reason the important survey is relevant is because the natural question that flows from this other evidence is well how do we know consumers consider a safety standard important just because they recognize an see as a safety standard doesn't mean they consider safety standards important that's why the important survey is plainly relevant antique and i just can i just as as this question and then and tell me why the following framing of the issue is wrong that that the issue is framing it seems to me you have a difficult time and tell me why that's why that's an improper framing of the question to the consumer says the government says this is ok do i really care about what some other body says honor the reason that's the wrong framing is because the materiality question is not whether the accused false statement is likely to be the only thing that influences consumers just pointing out that there are other things in their advertising that could have an influence on consumers does not negate the idea that one of the accused statement can likely influence consumers there is no law that says it has to be driving force it doesn't even have to be the primary influence the likelihood of influencing consumers can be attributed to a fault statement even if other factors that are advertised might also bear an influence on their purchasing decisions that's why that's the wrong framing is that's not the legal standard of materiality it's very similar to a likelihood of confusion in the trademark context you don't have to prove you don't have to prove a negative all other aspects of the advertising in order to demonstrate that the accused statement can have an influence can i just ask you what side question which is neither here nor there on the issue before us but how does that  damages in the cat the damages calculation i mean it would seem it would have to matter perhaps you're right not for materiality but it would seem it would come into play in some aspect of the case am i right about that or not  i'm not certain now i do believe i have seen cases where they the question of causation of damages and the question of materiality is often analyzed together i have seen that but