good morning your honor and may please the court my name is karen kaplan and i am here on behalf of plaintiff appellant nathan cooper if you please the court i'd like to reserve five minutes for a bottle by your honour's that microphone a little closer claim where's the express warranty in that claim or in that in that what i read to be a limited warranty well the express warranty provides that it warrants against all the facts pursuant to the uniform commercial code a representation made at the time of sale is incorporated into the warranty and regardless of a disclaimer of other warranties and express more and it representation at the time of sale is what it says is there are no express warranties as all caps by the way which the u c c at least used to require there are no express warranties other than those listed and described above and there really aren't any above those are limited warranties and they relate to manufacturing defects this often this be a manufacturing defect well the manufacturer and then manufacture well it's interesting that your honor would raise that it seems to me that the facts in this case of such that it's difficult to determine when in fact samsung made the decision to continue to allow these televisions to be sold as ten a d p television manufacturing what they intended to manufacture in the way the end of the manufacturing were they not especially when you look at pages three four and six of the brochure if they didn't intend that why would they say this is this is what we've done and it's not there are certain things that a t p isn't compatible with your on i think i would have to go back to the uniform commercial code provisions which deal with representations of the time of sale and those representations are undisputed in this case samsung sold televisions as ten a t p televisions that weren't capable of accepting a ten a t p video signal  the only imports that ended up mattering what is the strongest argument you have of those that are listening to that she issues in your very well i had thought before i got up here that it was the express warranty that i think that  that was marching up sam one hill ok well i appreciate that your honor however i would just if i may it is extremely important in the sale of goods to consumers that representations that are made at the time of sale be accurate and if those representations are in are accurate a consumer must have some recourse outlaw and the question of whether or not that representation was accurate whether the limitations were fully disclosed those are factual issues which we never got to in this case but what is a fact that we know is that if there is a problem you had to give them notice you didn't give them notice and then you filed suit you say well that's the knows well how can they possibly repairs of things if you don't give them notice before hand suit can't be the notice well and in fact your honor with all due respect under new jersey law the two cases that we cited in the brief i'm going to butcher this need those cases in fact specifically hold that the filing of suit can constitute notice where required were notices required under the express warranty moreover those cases and a number of other cases in new jersey i'm thinking in addition to the boys versus greenwich boat works case those cases all consistently hold that in order for a notice requirement to be enforced the warr for must have been prejudiced by the lack of notice that i thought the judge when iris after argument hell that the appropriate law through law i wish arizona law well first of all if i may judge garth there was no argument held this was simply i beg your pardon there was no argument held this was simply on briefing briefing yes even under if wrong what was wrong with his the television set would not apply we do your honor on the breach of express warranty it was uncontested that jersey law would apply because there was no difference between the law of new jersey and the law of arizona on the new jersey consumer fraud act we were as well it's our position that new jersey law should apply under the most significant relationship test at that time it would have in the governmental interest us there's obviously an awful lot of briefing about that and i'd love i'd like to get to that point as well whenever the panel is ready but also the fraudulent concealment claim there's really was no analysis as to what state's law should apply so of the claims that are before this panel we maintain that new jersey law should apply on all three well now what about the most recent new jersey supreme court case kept jaycee jaycee case well the j case instructs the courts that are considering a choice of law analysis to look to the restatement section six section one twenty one forty eight is it one forty one or two no the court in making its analysis looked at the wrong section they looked at one forty eight one one forty one has to do with representations made and received in the same state as where the actions taken in reliance on those representations and by the way i think the mercedes benz case later on in the district court in new jersey clarified that you know when i do the wrong i most certainly agree your honor so in light of telly it  and the exhaustive analysis that that court did i think it certainly is the law of new jersey in performing the most significant relationship test as the choice of one else that one forty eight to would apply in this case samsung's representations were made in new jersey and mr kaplan yes you are if we conclude that the arizona law should be the law that should apply what then is your strongest issue have reversed judge when iris all then it would be the express warranty your honor because under the express warranty arizona law is completely consistent with new jersey law with regard to the notice issue in that respect arizona and new jersey you didn't give them notice that's correct arizona new jersey would only require notice via the filing of the pleading under the of either state and you say that the strongest position that you have here to have us reverse its i believe that we have many strong positions it would be difficult for me to pick one that i thought was sort of my favorite i think on the new jersey consumer fraud a claim this court could simply reverse and remain with instruction and instruct the court to conduct the test under the most significant relationship standard and also in the course of that to examine the factors set forth in restatement second section six and also restatement section one forty eight two not one although it would seem to be there has to be a lot of development if we don't necessarily do it well that's are you on a first i'd like to address the express warranty issue just very briefly what question i have on on that one cooper is is not alleging a quote manufacturing defect in material and  ruling was relied on the limited warranty and the condition precedent that is found in the limited warranty requiring the plaintiff for warranty service to present the the claim the prisoner present the product to samsung for determination of problem and warranty service he did not do that and the court below found that it was a condition precedent that  required he was required to do that as a condition precedent for warranty service and that was the basis of his ruling and that's why we did the way we did but i think the court is is absolutely correct that there is no allegation of defect in the complaint and this really is not an express warranty claim tell me something did you take issue with the fact org can you explain away the fact that the j c case  n which the district court relied was a personal injury case this is not a personal injury case is there something that we should know about it as to its application or not question said that it would apply new jersey law because that was the law that's contained in the in the limited warranty i believe i think the court applied new jersey law because there was no conflict between then the court say that it was applying new jersey law because of the choice of law provision that limited warranty this is on the x this is on the express warranty claim i don't believe so and i may be i mean being incorrect about that your honor and i'd have to go back but my recollection was that the parties in their well i mean the point here is you've got the governmental interest to us and it's been changed by the new jersey supreme court in camp j c and they're saying that you apply a different t basically a broader test for determining choice of law doesn't that really require at this point for every man to develop facts to see how this all fits in with one forty eight two and section six of the restatement well there are two points that and i respect lee submit to the court that there's actually isn't a one forty eight one because i was a i was one forty eight won that here because while the while the allegation here is that sam g made their plans and conducted whatever analysis they did in in new jersey to come up with their advertising and marketing materials there's no allegation that that they were made in new jersey on allegations here and and that's paragraph twenty nine of plants complaint is that the entire transaction occurred between mr cooper one forty eight and one applies when the actions of the making the representations the receipt of the representations and the plaintiff's action in reliance on this representation occur in the same state correct where the representation were made where they received and with the damage they were made in new jersey right now they were not they were there they were met just this was this manufactured in  jersey or arizona well see that well first of all it was manufactured neither your honor this is actually it's a it's a product is manufactured in order but the allegation here is that the the question is what do you what is the  ts mean by made where were they made the the the the representations made if for example samsung decided ok we're going to set up we're going to we're going to set up billboards around the country and they put up a billboard in arizona and that says samsung deal p ten a d p a televisions buy them they're terrific where was that i would submit to the court that that representation was made in arizona here plaintive is alleging that he relied on representations made in advertising and brochures and his only allegation is that the transaction happened in new jersey i'm sorry in arizona there is no allegation that there was any contact any discussion anything at all happening in new jersey other than samsung planned this advertising and and promotional materials in new jersey but were was actually made was in arizona but why would there be then a differentiation between made in receipt well because there are circumstances i assume there are circumstances where i mean you're saying there are different places you are for example if mr cooper picked up the phone and called up new jersey and spoke to someone at samsung and said oh mr mr samsung tell me about your television certain representations were made i think this court is ready and if you look at august you know when you look at the no far decision emanation there's the issue is whether emanation is of sufficient i think if you look at the far case and emanation is not the same as where it was made in other words it may have emanated from new jersey the policies and procedures may have as alleged may have occurred in new jersey but were they executed were did plaintive where were they made to the plaintiffs here i would submit to the court that they were made in arizona would you still have two problems even if that were correct which i know i don't agree with but first of all you still think you went if even if it's one forty eight to analysis absolutely and then the question is also you have this new decision of the new jersey supreme court i mean doesn't that change the the types of considerations that one takes into account making determinations as to which force of law you to your club well i think what it does is it provides it's the i think it's basically the same the same information the same facts are considered but they are plied and in my view in a more structured way for example one forty eight to the the the factors that court should consider are directed to consider under the restated says where did plaintive act in reliance arizona that's  alleged in the complaint were the plane to receive the representation arizona that's alleged in the complaint were defendant made a representation we can we obviously disagree your honor but you know it's either new jersey or arizona domicile the parties we know that that's alleged in the complaint place where the tangible thing which is the subject of the transaction was situated again we know where that is it's alleged it's in it's in arizona place where is was is to render performance we can argue whether that's applicable or not if it's not here the only performs the plaintiff did was actually pay money to purchase the television set so if you look at all those factors all those factors are alleged in the complaint and the restatement provides a prior to zation which should be weighed more and what public policy reasons behind those the way occur that's all there and i court for different reasons as long as the record supports that judgment there's case law in this third circuit to support that i would suspect we submit to the court that the facts are here there are alleged in the complaint we don't have to go back for further consideration of that issue it's all there and this court has done that in the past ok i have a question that i want to ask you judge lynn maris held that there was not sufficient i've read that complaint and it seems to me is though there's an awful lot in there that fills in some of the things that  that what's your reaction to that well actually i'd like to know whether we affirm him on that point or whether we reverse him on that point well i certainly have a position that you bridges the gap between the allegation and the any representation made by samsung and that's that's the problem he doesn't specify when you look at the original complaint the original complaint the plaintiff allege you can that the original one i'm going to get to the amended your ari of but there's been there was a sea change in the plaintiff position in this case and i think that's that will dramatize why there is a gap if you look at the original complaint the first allegation a plate of made was i want a television cable except in ten a t p signals and that my television will not accept ten a t p signals and in his original quote complaint he attempts to bridge the gap in other words he points to literature  that he says the advertising in the promotional literature he claimed supported that allegation the problem was it when you look at the it when you look at the literature when you looked at what he what he quoted in his original complaint it did not support his position on the contrary it contradicted it provided the information that he claims was missing we file a motion to dismiss or response that complaint instead of defending that complaint he withdraws it and files an amended complaint and in his men the complaint he changes his factual allegation now he says no i did not want to television that accepted tenet e p because now i know my television does accept an a t p what i wanted was a television that accepted tenet e p digital signals through the h d m i which is a specific port on the television in support of that he does not cite to any literature from s that he claims would actually prove his point but that in order to comply with the rules of procedure nine b you you don't have to have quotations right you don't have to have quotations but you have to say i believe you have to support it by by merely saying i was misrepresented by the literature there has to be some it has to be grounded in the literature and civic reference something i think is some specific reference and that's what was lacking and i think that's where judge larry said ok you've now gutted your complaint of any reference to any material from sampson that you claim misled you now there's nothing there's just the allegation i was misled but there's nothing to back it up and that was the hole that he left in his complaint the judge will never saw and he is required to do more and you say that the amended complaint in its body that is the material that recedes the listing of the various counts that doesn't supply it either it does not does not in fact be to remove the whole you removed at all from the complaint it was all removed was in your original complaint and then in the amended complaint you removed all that  language i don't know if the court i see i have ten seconds i i really don't have anything to add other than to respect the request of the court affirmed below well the unjust enrichment claim that i believe that respectfully mr since i was in correct one forty eight one looks at a very limited set of circumstances the fraudulent representation is made in the same state as it's receive and relied upon and acted upon one forty eight to the factors that are set forth in one forty eight to make clear how it is to be interpreted on a proper factual record one forty eight two says that the not only does the court not only as the court to look at the place or places where the plaintiff acted in reliance upon the defendant's representations it also is to look at the place where the plaintiff received the representations and mr sun see all suggest that if there is a billboard in arizona where mr cooper saw some advertisement for stamps on television that would be where he that would be where he would see the representations that we won forty eight one but that's not one forty one that's one forty eight to the place where the pla received the representations one forty eight two subsection b so there seems to me not even to be a question as to what the appropriate section of one forty eight should be in a case such as this where representations are by the admission of the defendant plans in the state of new jersey you want to judge bork was asking about the  nine the issue as to whether there was sufficiently a possible second i'm of the complaint on the project concealment you were impressed i would your honor the fraudulent concealment that you were responsible for both complaint i was wrong or you know and what i can say is that the amended complaint is the only complaint that is before the district court and it's the only complaint that is before this panel if the amended complaint doesn't satisfy rule ninety this panel should affirm the district court if the panel's left with the firm conviction that the amended complaint does satisfy ninety then i would respectfully ask this court to reverse and i mean while you do it i mean the point that that sort of we're talking about that we probably should is the standard appears to be changing in light of all that you have to plead something to claim as the be pla discussion of what that standard is for ten eighty p ten a t p is a defined standard it is a standard that has been defined in the industry by the advanced television systems committee of which case it was i like and wouldn't be able to comment i don't believe it was a ten a t p television it was it was in high definition television then representation that it could receive so many pixels when they said it couldn't recei only at the pleading stage we only need some opportunity elop some kind of factual record if sam song as they're arguing here made such a spectacular disclosure of the limitations of the television it should be relatively easy to resolve that factually but that's not what the purpose of the pleading stage is worth far less facts sufficient to state a claim under its ball obviously the standard is tighter but there is no quick question in my mind that we've done so here and i would just all i can do is ask the court to piece carefully review those sections of the complaint which are set forth the factual allegations and if the court us nothing further i'm way over my time