that's the big law here custom fit orthotic is with defendants deceptively name and market to consumers at a premium fifty dollars price point which are really just cheap cushion shoe inserts that they otherwise sell for ten dollars defendants use a fancy high tech computerized custom fit or thought a kiosk with flashing colored lights and two thousand pressure sensors like wizard of oz designed to mislead a reasonable consumer into believing that he is directed to a particular back to scholz custom fit orthotic device that conforms to his unique foot anatomy and will provide him with immediate all day relief from foot pain knee pain and back  this is a very sophisticated deceptive marketing program which violates sections three forty nine and three fifty of new york's general business law the trial court dismissed the earliest use how would the recent consumer think it was being is it going to spit out to want to insert for me or do i just choose from these fourteen that are on the show this year it's not that the consumer expects the n c fabrication device inside the machine that churning out the special customized orthotic device the consumer is being told that there are these pressure sensors he stands on this fancy computer as machine it's mapping his foot it's mapping the pressure points it's taking all these various sophisticated measurements and it's then going to direct the consumer to one of the fourteen already available products that meet the unique characteristics of the customer in the consumers foot so there are fourteen the consumers ultimately other a fourteen available products and the custom foot custom orthotic device is going to one of these fourteen devices will fit his unique foot on anatomy and then provide him with immediate all the relief of foot pain knee pain and back pain and a consumer should be able to reasonably rely on a representation this is a custom foot orthotic is that term is reasonably understood in the marketplace and that's not just a cheap cushion insert you can see the fourteen were different from one another well they are different in and some respects e s to you remember you're dealing with an over the counter product and a reasonable consumer who's not an orthopedist so the level of sampson is different you have to be able as a consumer to rely on the representation that you're getting a custom fit orthotic what you would have to have a consumer who thinks that by some chance one of these fourteen boxes was actually made for that consumers own two feet  let's say the machine said well there are three sizes you know small medium and large your medium and they just take the medium box with any sensible consumer belief that the box mark is custom fitted to their own feet well here you have fourteen possibilities i just started with three so at some point there's there's a line to be drawn three might be more obvious to consumer that this kind of advertising is misleading remember here the new york state law is very broad it provides is there a capacity to mislead a reasonable consumer here you have this very fancy device there making explicit representations on the device itself that this is a custom custom orthotic that custom fit orthotic so the district court here never even went and analyzed what does the term mean custom fit orthotic to a reasonable consumer that's the critical starting point before you go further what does that mean to a reasonable consumer you can't decide that as a matter of law you need it's a factually specific determination  requires expert testimony probably consumer surveys things in the light and you can't just jump and say what does you have to decide what a custom fit or thought is now in the complaint we allege what a custom for a thought is we use the diet you know the american he he was led to believe and believed that the dr scholl's custom fit orthotic insert products he purchased were actually custom fit or thought ix or inserts individually designed for each of his feet which could and would alleviate his pain and in fact he got the what we say was obvious he was getting which is an off the off the rack product he says essentially the same thing in paragraph forty that's argument one whatever mr colmar thought when he walked into the wal mart in saratoga springs in two thousand and fourteen he could not plausibly believe that something was being made for his individual iced feet when he was directed and he says multiple times he was directed multiple times to take this particular model off the shelf the model that's what he ledges and paragraph fourteen of his complaint that's one argument it's just not plausible he's got a little bit different argument and that's that somehow consumers were  led to believe that this was the functional equivalent that's what dresses as well of what he would get as he did when he went to his podiatrist or a chiropractor in this case and twenty eleven something that  was functionally equivalent to what a doctor would prescribe several answers to that first of all that's not mr combers allegation what he believed but if we take and i think you need to look at this as a reasonable objective consumer  that's what we've go laver's calls for there are several answers to that first of all aside from it not being mr colmar that's there's no where that bear ever represented or dr scholz over represented that that's what this product was all the players can do is say well it was theirs kiosk and it was priced more than another product and it was put next to cheaper products and it was called a custom orthotic and it's called custom orthotic of course we've got the name there but not only is is that not a representation that is the functional equivalence but to the extent any consumer might think that this was the same thing as going to a podiatrist we have a disclaimer we say this does not take the place of your podiatrist if you have a medical problem see your podiatrist this is after all it's an over the counter product he's been asked to buy something that's off the shelf and then thirdly and i think this is also the plaintiff's theory of the case if you look at what they mean by a custom it's doctor prescribed custom fit or thought of then you then you need to look again going back to the complaint to paragraph twenty nine in there and i won't go through it but appendix page sixteen there is this long elaborate process of measurements and of casting and muscle examination or position your honor is no reasonable consumer in light of all those factors could i believe the allegation in the complaint is that these custom fit or thought acts were approximately fifty dollars i checked walmart this morning forty nine ninety nine and the others were approximately ten dollars so thirty  large the consumer isn't given any guidance as to what might be best for them other than what they can read here at least we're giving we're helping the consumer there are fourteen different models and based on what the kiosk provides which recommends the best product for this particular consumer they can choose it's an over the counter product there's no secret here they just pull it off the shelf fourteen no different from fourteen or different your honor yes and there's no contention otherwise there's no contention that it's that the kiosk doesn't do what it says it does which is better two thousand different pressure points in fact the alleged i think it's around paragraph thirty  thirty one or thirty two at appendix eighteen what the what the kiosk does it measures foot length measures arch type measures pressure points and based on that data those three simple things compared address that you care this is one area where we part company with with judge bats although we didn't address it in the brief if there was no standing in the standing issue really only goes to the injunction relief we don't think she should have ever reached that and if this were purely dismissed on standing this would be a twenty one dismissal and it would be without prejudice but instead she found there was no cause of action here at all and we think that's the right analysis if there's if you just reverse the responsibility to the court we think we need to bring jurisdictional issues so i don't think that changes the outcome here i would ask this court in considering this it doesn't need to reach that issue it can affirm based purely on the twenty six arguments  but does a reasonable consumer know what a custom fit orthotic if they don't then how are they misled by the term custom fit or think it's something they're looking at this machine that says custom for i thought it this fancy machine for fifty dollars i can get i've heard will fit my unique foot anatomy and that's misleading here because it's it's really junk it's just a question insert that you can do for ten bucks right down the aisle and that's really a deception here and it's certainly an actionable deception machine is not is not a production a reasonable consumer doesn't necessarily know what the custom fit or thought it is but they know that this is a fancy device here that will direct them to one of these fourteen products that will cure their foot pain the pain and back pain all day immediate relief that's what it says on the kiosk and that's what's misleading to all these consumers who are directed to pay fifty bucks for a worthless product that the can see waste their money for ten bucks on