here the next case on the calendar roberts vs weight watchers online program in september of two thousand and fifteen on thursday november twenty sixth two thousand and fifteen thanksgiving day weight watchers prematurely updated that online program through an unfinished new program called online plus from that thanksgiving day until at least march seventeenth two thousand and sixteen the day before the complaint was filed in southern district mr roberts and a vast number of weight watchers subscribers many subscribers are there and the internet have fewer and what's the amount of the subscription twenty  ninety five a month we could could you help me with this the subscription agreement as i understand it and this is you know straight out of this is a quote  paragraph seventeen that's in the appendix of forty three says and i'm quoting the products offerings content and materials including without limitation  on the website are provided as is help me understand how you read that phrase to exclude the words as it is exclude the words as is from the website the website is stated separately from the products that are that are the fee based products on the website and among the fee based products is the online program those are the those are the items that are that are as it is it's not the website itself and it's getting on to the website that became impossible after the change over what would be as is clause still apply to the mobile application of online plus applied to the the program that was in place when the subscription agreement was signed the when the program was changed the as you you couldn't have a change website that didn't work you couldn't have a mobile app that didn't work and say ok fine this is from the as is clause before i the on line loss defined to be one of the fee based products yes it is but you still couldn't get on to the website they choose when they change the online program the website became unusable to all through a great number of the subscribers so you couldn't get to it by by changing the onli plus program it seems to have affected the website to make it impossible even to get onto it so it's the website that was affected by changing to the by changing to the online plus program in one remedy is terminate the subscription that that's one of the remedies that the year the mr roberts and as noted by a number of the other subscribers wanted to continue try to continue some couldn't even get online to terminate as was noted in some of the the blog postings that we included to show how how bad the program was but they were by changing the program they were the this is scribes were put into the position of someone who has as in the process a case that we cited they had no input or knowledge about the change of the program they couldn't have known of the problems it wasn't an ongoing program that that had glitches it was a new program they had know th couldn't do anything to correct the situation they knew nothing about the changes that the company was making so they they they were in a position where they could either and terminate spend time terminating there would be no or even if they terminated but they would still be in charge for the period during which the program didn't work during which they couldn't get on to the website and is that the court said in the concessive case there was no way that the owners there could know that the house was built on an improper foundation here or there was an improper foundation that sought to exclude in the concessive case was similar to the warranties they were trying and the limitations that they try to make here there was no chance to that they had to know that that the program would be deficient they had a going program you know to make a claim of intentional breach of faith reach here you can see it in your reply brief that alleged that they didn't follow proper procedures the complaint alleged that they purposely did this during that there in the holiday season the complaint alleges that they did to that their  their failures were such that they were forced to apologize but did nothing more that makes it a purely legal issue it that the factual questions will be whether they whether it was given the word intentional whether it was given any legal terms as to what they did as to the their state intentional below but the conduct that we are arguing was intentional was stated in the complaint and the language that the language permits the the argument i believe they are the language from it's the argument that what they did was intentional and there's not changing any facts of what we fled there's no changing any of the details of what they did the fact that they apologized numerous times but gave no recompense or refund to any of the shareholders ship the subscribers  all indicates that that that that that can bring us to out of the exception from the rule that we stay in the brave thank you you have plaintiff claims we had an obligation to provide him access to and you can access it through two ways that website and the mobile app and his fundamental claim here is that he was able on one day on two occasions to access online to provide a product we can see that weight watchers had an obligation to provide access to its website and those programs so if we watch or said we have a website we are simply not going to provide you with access to it anymore i think that would be tantamount to a terminations of the subscriber subscription and i under the contract there is an obligation on weight watchers to provide a partial refund and that circumstance for that period in which no claimed were some prolonged period of time or so i think it's important to keep in mind that weight watchers gave plaintiff and its subscribers the i'm qualified right to terminate at any time and the most they would be out of pocket is simply one month steve so if the weight watchers one was unable to correct a defect for some period of time say one year two years you would expect that any rational subscriber would terminate his case of course that is not what plaintiff has much plaintiff alleges with respect to himself that only on one occasion or on two occasions over the course of i think one hour of chat room conversations he was unable to access  although in their brief in his brief plaintiff makes assertions that there was no service that's simply not what he alleges here and i think it's important to to look at the complaint itself to figure out what this case is actually that would require weight watchers to use some sort of industry best standards and releasing its website but of course it's axiomatic that courts cannot construe g s of good faith that are inconsistent with a disclaimer  duty to provide access to its website as i indicated earlier and response to your honor's question if weight watchers were simply to refuse access to its website it would be found to those customers and that is a duty that  court is one that he did not make allow that fact i would point the court to footnote five also opinion in which she expressly noted that plane of had not raised any argument in that court that the limitation of liability provisions forcible as a matter of public policy even at the skirt or to exercise its generous discretion to consider that argument for the first time on appeal there are simply no allegation anywhere in the contract that would support a planned that release on its website that to implement emergency management procedures and that their release of the website was chaotic not that it was after three minutes your honor let me just quickly get past one point with mr roberts it's not allege it was one day that he had a problem on march seventeenth it was from the beginning what if when he first filed his complaint on january seventh in state january seventeenth two thousand and sixteen in state court then the case was removed to federal court from the beginning he states in paragraph one he states that he and other rates below yes your honor in fact at the argument below weight watchers counsel said so i don't believe you'll find a case where this where this is a disclaimer the warranty that says you're receiving the whatever it is you're receiving here it's a service it could be a used car as if you can't say well but there's an implied duty that you're going to fix it if it doesn't work right well yes you can the c you can attempt to to limit your liability but we're not going to enforce that limitation because you the home builder here the website builder i have done something of which only you are aware you that there's no way your subscribers could have been aware sure they kind of if it went on they're using us as guinea pigs it's as if they used and we just we allege you answered your question when you posed the question other than try to get their money back that's you and the subscription and you get to try to get a refund try to get try to get your money back and try to get the information back that they've lost they have said that we lost information we're trying to get it back that it was so bad that people's people's recipes their their programs their personal programs were lost and they even if they got their money back