brief in fearful that some players may choose not to cover those products if they were found out that these supplement products do not in fact require a prescription under federal law itself this has chosen to attack st databank speech in order to attempt to keep that speech away from payers to regulate those payers conduct now so why do some things case moot complaint this motion was filed about no longer this court can grant effective relief and in this case excel to us has conceded that the amended complaint carries forward exactly the same claims there were at issue in the original complaint that may be true of any amended complaint but is exceptions that this court set forth set forth one such exception in lacy where the court found that that rule was formulaic and also unfair when applied in the circumstances of that case and we respectfully submit that in this case it would also be formulaic and under very have renewed you could have renewed the motion and you didn't as i understand with the subsequent complaint is a correct understanding or not we certainly could have filed another motion with respect to the amount of complaint discovery is that he didn't write that we have not i would point out however that the to the extent that this court finds that the filing of the amended complaint jurisdiction in fact the th circuit was was faced with a very similar situation in the case dating independent school district versus u s mineral products co which is nine hundred and six well you know if it's  render this particular mood that that filing at least as to the state claims would be rendered and melody and therefore this court could proceed because the mishal complaint would remain the operative complaint at least with respect to th state court actions and i would point the court to the th circuit decision that i just cited that point however are you saying then that you're not allow you would not be allowed to file an anti semite motion against the amended complain desert i'm sorry to the extent that the that the court was without jurisdiction to have to permit that filing then there is no amended complaint at least as to the state claims and then we could not file if i thought motion amended complaint that is operative this complaint doesn't exist so i guess i don't really understand even if we granted you would leave on a non existent complaint that it would have no fact with respect to the things that are ongoing on a different complaint we believe that if the court were to find in our favor we would grant us effective relief and that the court below based on this court's mandate would require conformed complaint to be filed so it would be an advisory opinion it would not because the very claims and as itself is represented in seeking to amend its complaint was that this is not without an amendment at the outside of the case to change claims to add claims that it preserves exactly the same claims and simply added facts that were discovered through discovery but did not change the theories or the claims themselves which we should know that's not necessarily true that it seems to me that ad i have if i'm correct about the record adding that q classification could make it something of a different case so adding a vast theory which is a separate theory than the old theory that the court below found not to be exactly that conclusion where where were the complaint the amended complaint carried forward exactly the same layman theory that it that the district court could still decide a pending appeal from a bank or bankruptcy court decision now rule that if you as moot i suppose the procedure would be to vacate so much of the district court's opinion has discussed the slot motion and then provide us leave to to refile the motion as to the amended pleading  g mean that other than attorneys fees you know what's to be gained by having the court of appeals rule on this matter when the merits of the plaintiff case is already briefed on summary judgment our argument is that it's that these claims are still alive that they were carried forward and that in a ruling from this court that said that for example that the speech at issue is not commercial speech or that the speech issue was not false with for misleading for purposes of the claims issued would adjudicate the claims that are still alive in this case it would not be an advisory opinion it would have  would would then be of not part of the case which is the whole purpose of the slop statute well that it's sort of like qualified immunity it's supposed to protect you from the litigation but alleviation is moving right along and in any case where this where a stay is not granted such as this case that would render any appeal the decision and all of the and would be contrary to this court's precedent which says that those decisions are in fact the field will immediately because and planned parenthood is gives the district judge direction about how do you decide these cases that that judge didn't have at the time so again you know it seems to me that in the future that judges aren't going to know that either you have to grant discovery and do this is a summary judgment or you have to treat it as a rule b six it's told b six but here we  the court can properly find both that our speech is not commercial and that the speech is not false or misleading i would point the court to the a sela case as well as the genius case the judge or it decided recently which is cited in our lottery for guarding where both courts decided on a twelve b six motion that the speech at issue here the very speech that's at issue here is not commercial speech and in a cell also held again on a motion to dismiss that the speech was not faults but  feet in order to seek discovery and that discovery must be permitted here there was no request for discovery and plaintive did in fact put in a great deal of evidence of their own so i think it wouldn't be improper to apply rule fifty six even under honour's may please the court benjamin mundell on behalf of excel at this usa before this court can reach the merits there are a number of threshold issues that are decisive of this appeal most importantly the court lacks subject matter jurisdiction over the appeal because it is now moot the appeals moot because the court cannot order any effective relief the only relief that was sought by st databank in the only relief that was available dismissal of the original complaint but the amendment of that complaint rendered the original complaint with no legal effect it's a so they can't obtain the relief that they sought so this circuit and publi decisions have held the challenges to complaints that have been amended complaints are no longer in effect should be denied as move and that's the ramirez or the city of san bernardino case that decided in the court also in the libya case this court on either false or misleading or on commercial speech the two major merits issues is tethered to the complaint the question is does the complaint state a claim for false misleading in the complaint has changed significantly amendment and the and then it was not made by excel this alone it was made upon st the request a st at a bank and then upon the consent of st did it back so i don't think that they can argue before this court that the to accept the amended complaint when they asked us to do it and they consented to it and they've since moved for summary judgment on that complaint without moving under the anti slapp statute when they could have and their sixty days to move past so if they thought that the nd amended did not make that argument in our brief because we had not yet had consent to file the amended complaint and additional court had not yet accepted them in a complaint when we made our brief this was still a lot of controversy surely i'm a little confused as to what was going on here that was yet not yet ruled upon we filed our brief so it was still pending below whether we could amend our complaint then as it said that this was going on two tracks at the same it was going to track simultaneously it is not a two after we found our brief that the case became moot because after we  that's why this was not raised in our previous until the court raised it just last week but ultimately if the court's decision would be a mere advisory opinion because the facts have changed dramatically the  complaint bring substantial allegations that were not in the initial complaint so a decision that that particular pleading was insufficient as to in all complaint would not provide meaningful guidance to judge again but of course that is not would not even be proper because the course do not decide hypothetical questions of fact that's just an advisory opinion it does strike me as rather peculiar that things are have continued to proceed in the district court once the appeal was filed here claim when the district court denied the motion to dismiss st databank move to stay and judge gilliam said that he was effectively staying the state law claims but he was allowing the lanham act claim to proceed because there was no basis to stay the federal claim because that's not subject to the appeal and then he said during discovery because there's nearly complete overlap between discovery for the state law claims the federal law claims he was allowing discovery to proceed so we had been operating under the premise that our state to it is that why i don't think the issue on appeal because that the amended complaint that's the question that is going that is being put in this proceeding below while the issue on appeal is the original complaint well no no i understand that are not state law claims in the amended complaint there are state law claims they made a complaint but those differ substantially from the state law claims in the original complaint so there has been no stay issued as to the amended well with or without a stay i really am not sure how the district ordinarily this would not of this would come up ordinarily none of this would come up it's because of the the inherent conflict that we're seeing between the federal rules and the anti slapp procedure which is why members of this court have said that they have have raised concerns with the a original complaint challenge st databanks plan to code our products is over over the counter which is false asking these insisted that that was the only way to code the products after we got into discovery st databank abandon that plan and they went to yes we by all accounts expected here is amended complaint they would file a motion to slap the amended complaint judge gillian may have said i've already decided that issue not to write a new opinion on it this this case this amended complaint has even more factual allegations than before so i said it met the standard the st time i'm going to agree this time but i would have perfected the issue to come up on appeal on the live and actual complaint because here it is there any discussion that this court has of the merits of this case would be purely advisory because commercial speech is fact dependent it depends upon the particular allegations in our complaint what do we plead their database is how it works what it's used for all the factors of caskey and other courts what other commercial speech of fact dependent so an analysis of this court may render about the pleadings of the st complaint under caskey would of course provide anybody guidance because an opinion from this court on an issue of pride guidance but there is no live concrete dispute about whether the original pleading satisfies the caskey standard the question is about the amended completing and this court cannot decide about the man who pleaded pleading now because it's not subject to this appeal the way that this is a procedural posture because of the anti slab statute and because of the ongoing federal claims that were that we have with our state law claims but the proper way to handle this would have been to file an anti slap motion within the sixty days of our amended complaint and the court could have addr the film on case which was also decided after judge gilliam's decision below decided by the california supreme court and it limited the applicability of the anti slapp statute and it held that for profit speech exchanged confidentially and not part of a larger public debate does not qualify for any protection under the anti slapp statute so while the appeal is moot if the court does does not agree with that the other way that this case can be  nd piece is you have to look at the context of the speech and as that is there a functional relationship where the speech furthers the public debate or furthers the public conversation and the st savings database does not do so in any way it's  does based on the record here it is a purely confidential speech is exchange from a for profit entity to other for profit entities used exclusively for the reimbursement of drug claims it is not presented to congress it is not presented to the f d a it's not presented to the press or the public there's no connection to the public debate or public conversation about any issue because the public never sees the speech at all so the case this case is on on really all fours with film on and importantly the attempt makes to distinguish film on is only to cite one case and they cite the industrial waste case that was discussed in film and if you compare industrial waste to this case it shows precisely why the film on rule applies in the industrial waste is not hearing and speeches presented it to a public hearing and an employee of the defendant was at that hearing prepared to testify about the report for then you can you point to any case where a company whose business is compiling information about products for example product reviews or guide books has been held to be engaging in unprotected commercial speech yes your honor the handsome brick farms case from the th circuit is one such dobby commercial bank versus morgan stanley there's a case bear versus r j health from the district of connecticut that involved a similar database but importantly the question cannot be answered at such a general level of compiling information like moment reviews because our complaint makes very specific allegations here this is not a general database that provides product reviews rather it is a a database that is sold  commercial purposes to insurance companies and other payers to make reimbursement decisions including governmental payer including governmental payers but also private payers but it is used according to our complaint this part of the database is exclusively for that purpose so it's under under the california supreme court's decision in caskey which is the guiding the guiding case for whether the california causes of action unfair competition and false advertising law apply here the question is what is the identity of the speaker of the audience and the content of the speech here the speaker and the audience are commercial speakers and commercial audiences and the eye in that particular speech identifies the identity of the product the price of the product and other commercial features and it is used exclusively for commercial purposes and that distinguishes this case from the case involving consumer consumer reviews like the erik's case where a consumer reports it is for many different purposes it is not exclusively for you let me st point out that as excelsis has conceded that the this appeal steve pursue reading's with respect to the state law claims regardless of our consent the district court could not permit those claims to be amended or cause any change to those claims because they would be subject to the very stay that the appeal would have occasion i will also point out that while excel to says now said that the amended complaint makes great changes to its initial complaint what they said in their motion for for leave was that the proposed amended complaint keeps those same allegations and adds more information in detail and they said in a footnote which is to be clear the amended complaint does not advance any new cause of action against her state of ink or any new legal theories in support of those claims and goes on to say our actions are still on lawful in the same ways for the same reasons that were alleged in the initial complaint and so i think it is not i think it's clear that they they intended to carry forward those claims in the in fact did in terms of the commercial speech question that was just raised and cast out just briefly quote from kathy caskey specifically said that commercial speech must consist of factual representation about the business operations products or services of the speaker made for purposes of promoting sales or other commercial transactions in the speaker's products or services simply not the case here that's what the seller courts held that's what the genius court held this court in hilton which such great where you were on that panel made very clear that when the speech is the product it can't also be advertising for the product that's exactly the case here firstly the bank only sells the database and it can't the database itself cannot be advertising for itself in terms of the  privately confidentially to one client because it talked about the implicit delivery of government regulations in the legality it's competitors actions and because that speech might change the policy of that client that was sufficient to render the speech of public interest here excel to select is that our speech is not only has huge public health consequences but that it resulted in a discussion between congress between public health agencies quite clear that to the extent the speech is even considered commercial at all it would fit on the industrial waste side of that divide thank you thank you council my case just argued is submitted and we appreciate how far you miss from both of you