good morning john de stefano for the indirect purchaser plaintiffs issues in this appeal are first whether plaintiff state timely state law damages claims under the continuing violation doctrine as applied by this court in propane on bank second whether the releases from propane one bar claims based on post release purchases that is claims that accrued after the release period and third whether the district court erred by ruling on plaintiff's equitable claims on the basis of redress ability and latches dismissing those claims without any development of the factual record and the resolution of these how would help this appellate judge if you would start where and for what do we have to decide and then what should we decide the fundamental issue in this case is the issue of cruel because so many of the other the other issues that arose in the litigation really stem from the just reports original why do we have to do anything more than remand for further consideration rulings as a matter of law on limitations and and the application of the relief so that's a should yes that's not a must it's a should but but it would help you know if you you guys  wouldn't would think about your audience when you write these hundreds of pages let me ask you a question should we go ahead right now and say arizona they've rejected continuing violations we should certainly say refused to apply to find a consumer violation in the context of a property right and easement which is an entirely different context from the antitrust context that we're talking about the but there's no other all right on continuing violations in arizona arizona arizona harmonize it's law with well that's a general statute that says you know harmonies sound a lot of different ways let's go next to north dakota north dakota has rejected application a continuing violation there are some of these that we just ought to boot out now is a rule that's very particular to antitrust it under and zenith radio that i'm going to tell you right now there are no north dakota in address cases right not one right correct correct ok so i don't i don't see the point next how about new hampshire in tennessee in vermont what do you say on th county were to determine what state law would be we look at relevant state president analogous decisions consider dicta and other reliable data that would foreshadow what the state court would hold in this court routinely predicts what the state supreme court would hold we have five sixth eighth ninth and eleventh that consistently apply the continuing violation doctrine the leading treatise to read at home and camp also does and to the extent seven states expressly adopt continued violation doctrine and virtually all of the rest harm and i can tell those seven states while you're while we're doing this exercise give us yes yes can you tell name the seven states california north carolina new york minnesota new mexico  and west virginia would you do them one more time because i have an alphabetical order go ahead california north carolina new york minnesota new mexico nevada and west  virginia seven states of adopted it eighteen states harmonize their law with the federal into as a general principle so in the absence of authority really the safe thing to do is simply to apply what the prevailing rule is at the federal level to the states is inconsistent this is consistent with the general attitude to me the safe thing to do is let you sue in those states well federal courts are  are likely to be you know because of the class action fairness act are likely to be ruling on these questions regardless and that's certainly not a that's the the court has to predict what the law would be whether or not there's been a and express holding on point we joined we joined plaintiffs in twenty different states but in the in the event that the state hasn't spoken to this issue specifically if it harmonizes this well with federal law that's consistent with the general rule that you know development of the and i trust laws is left to the court delegated and so if the state is drawing on federal law that's a that's a consistent jurisprudential approach to to you know using the experience and wisdom of the courts and relying on that i would also add that the mckinnon case cited by the defendants does not reject the continuing violation doctrine as it applies here mckinnon talked about four x four different purchases that violated the antitrust laws three of them were ancient something like twenty years old and what the court held was that the continuing violation doctrine would not revive those old claims arising from those old purchases but it did not hold that the new purchase the recent purchase was time bartz implicitly on relation back are there state law claims besides maine vermont and wisconsin that you really are going about relation back on no because we believe all the claims are timely we have purchased within the limitations period for all the claims but you know you're your relation back argument i was trying to get to the point it really only affects those three right think about your view of the case right that right there really effective is that a yes it really affects only those three yes thank you guy good i got it now you're six years statute of limitations subclass does that include people who brought tanks before the propane one settlement so that some of their purchases are covered by propane one yes settlement thank you yes but to turn to the releases case how does it apply tell me why we're even in missouri law because this contract is governed by missouri law that both the parties in the district court understood that it was concluded for the resolution of a class action that was pending in missouri course is the gym in a really different situation protecting consumers and notices and all that well this state is also i excuse me this case is also about protecting consumers and it's about in some you know difficult questions of public policy involved when you're doing releases that impacts consumers in the future and the public at large because we're talking about we're talking about a price fixing conspiracy that arms competition and you know results in illegal super competitive profits i mean personally interest of course but go ahead i got curious and that when you're talking about philip philip that's not price fixing what's in the fillable is the economic equivalent of price fixing because it and this goes back to you know sucking the oil and cataloging it doesn't matter if it's a non priced term or not naked horizontal going to agree on the fill level for for for customer and retail consumer convenience and then charge different prices you could but that's that's not what we allege we allege that they kept the prices concomitant and the allegations on that point were already held to be sufficient in in propane on bank that there was a continuing conspiracy that was a person a violation of the just lost any of these cases you never did if i had your experts to say that right at our in baker argument it was represented by counsel there were experts who would say that but you're not at that stage of the ballgames what you're telling us and so i don't follow ok at the end bank argument of the propane one that the counsel there said he'd have no trouble finding an expert i forget his exact words but that's what he came across to us to say that if you can control the quantity you control the price that's sure but you but next case you're not to that stage yet where you've identified experts we haven't we haven't identified specific experts because we want to the experts go to stage now just in terms of the litigation process and i was asking about any of these cases in any of these cases including the other case you're not about and yet are you the direct purchasers case yeah what's been consolidated there but i'm not representing directors that's what i thought far as you know no expert in the fight in that case that was my simple question not is it not as a procedural matter no they were there were experts who worked in the in the original propane litigation propane one but this issue as i said has been has been resolved by alleged and applying the logic of a cruel which again the district court agreed governed the district court just came to the wrong conclusion on a cruel applying the logic of a cruel each new sale gave rise to a new claim so they sent those claims post dated the release there was no clear and expressive language that would cover those those post release purchases this is nowhere more clear then as concerns new purchasers of propane people who had not purchased propane before the releases were entered into the defense don't even attempt to argue that those purchases are subject to their release but if the logic applies the same way to all post release purchases and again in the fox midwest theaters it would raise major policy concerns if a release could be used to effect of lee immunize the defendants for future intentional intentional actions in violation of the and i trust laws which discontinued third argument that do you really care about the equitable remedy you've got the f t c doing stuff you've got all this other stuff going on do you is that really important in this case absolutely absolutely this this really does you know sweeps farmer broadly than what the f t c accomplished first of all the f t c order does nothing to remedy market division which is a completely different violation of the antitrust laws and price fixing you have to separate order prohibits only  agreement to raise fix maintain or stabilize prices but if you agreed to divide market that might markets that's a that's a different and a competitive action now sounds to me like you just want the district court to collaterally review and the man the you want them do you want them to collaterally review and improve the f t c and then i know that the plaintiffs are in a different position from the government but the plaintiff stand in a different position from the public right so the government is asserting that have different interests particularly when it comes all the propane that they're paying for it's no answer to say that the defendants you know might charge a higher price for more propane because if they're already charging a super competitive price once the propane levels are increased in a competitive market they won't be able to increase their price further and it's not a defense to say they'll come up you know know the raise prices forever i think your arguments to general but go ahead with your argument without any record the district court didn't have a basis to rule on redress ability and in fact as i was about to say earlier it's order contradicts itself because the conclusion that there was an injury to these consumers an ongoing injury that is impacting them into the future presupposes that it hasn't been haven't had enough you're not talking about you're talking is no it's just stands to reason there was no evidence on the injunction it was it was dismissed on the pleadings so we never had an opportunity to prove it that's why it should be sent back i see my time the question i'm sorry if we were to specifically uphold the district court's reasoning that that it is not a proper judicial action exercise of judicial discretion to mandate fill levels of consumer products is there anything left of your of your equitable claim yes because we also seek to to end the defendant's agreement regarding division of markets and you don't think they have the you don't think they did they read the f t c is ordering them to do that no not at all  it please the court ginger anders for the applebee's i'd like to start where judge logan did which is to talk about the most straightforward way to resolve this case and i think the court can affirm the dismissal of all claims in this case on a ground that is supported by the reasoning in the and that is putting the question of timeliness aside the plaintiffs here have failed to state a claim for relief under the standards set forth in the decision and in the supreme court's decision in tuam plea so the claims here fall into two categories based on when the purchases in question were made so first the plaintiff's alleged claim is based on purchases made before two thousand and eleven but these same plaintiffs asserted those very same claims against the same two thousand and eight conduct in the propane one case and they settled and released those claims so those claims should be dismissed and i don't understand plaintiffs to contest that here the second set of claims is that in an attempt to avoid the effect of that two thousand and eleven release the plans have repackaged the same allegations based on the same two thousand and eight and two thousand and ten conduct the conspiracy continued with that sort of blanket allegation i thought they had gone back to pretty much copied the saying that's in the end bank decision if we compare the words we five have about the same or not i think i think that's right you're on and that's actually critical here allegations whatsoever that the defendants took any actions to communicate with each other about the conspiracy to force the conspiracy there are none none of them no allegations of what the court called the relevant individuals acts and conspiracy just continues unless we have evidence to the contrary and i think that reasoning is irreconcilable with the course analysis and with principles that both the majority and the dissent agreed on so principles that all nine judges agreed on and so the court had to decide whether the plaintiffs there had sufficiently alleged a conspiracy through two thousand and ten so we took that into steps the first step was to say is there a sufficient allegation of an agreement to begin with in two thousand and eight and the court concluded that there was then the court said now we need to consider whether the allegations are sufficient to allow us to infer that the conspiracy continued to two thousand and ten so the court didn't just assume that because there was an allegation of an agreement in two thousand and eight that that must have continued later in time instead the court went through the complaint and it looked for a specific actions that would support the inference that the defendants were actually still engaged in the conspiracy beyond two thousand and eight so they didn't simply assume that the conspiracy would continue so i think that reasoning applies equally here here we have allegations that end in two thousand and ten and there is no basis in the complaint to infer that the conspiracy continued well i think the players would have to allege that super competitive players prices were charged in two thousand and twelve and at those prices were caused by the conspiracy itself and that's what they haven't done here because there's no allegation there's a time lag between two thousand and ten when we had the last allegations of a it's virtually a carbon copy right in the science of allegations and so i think all of these arguments apply equally to the or complaints and that's why this is the argument that would allow the court as a blanket matter to affirm the dismissal of all the claims in this case  injury that continues despite the existence of the f t c order and i don't think they have come close to alleging that here the f t c order itself is extremely broad it it prohibits all price fixing by any means and just to respond to the discussion of market allocation i think the plaintiffs themselves there are out there allegation a market allocation is that it was an alley it was a market allocation and i'm quoting from j five thirty four here in furtherance of to maintain prices phil so the claim its own theory of market allocation is that it was done in service of a price fixing conspiracy and i'd also point out about the market allocation allegations that they suffer from the same  the same flaw as the rest of the complaint in that they address only conduct in two thousand and eight in two thousand and ten and there are no allegations of market allocation that now we've talked mostly about the propane casing kind of federal law but if we get down in the weeds of the state law we've got minnesota new mexico nevada and west virginia that an act of the statute office goodness gracious so surely there is some kind of continuing violation doctrine that's really important in those states don't we least have to look very carefully at those states but i think the court doesn't need to get to now where she always we get their counsel don't dodge the question absolutely face the question go ahead so yes i think the court would have to look carefully at these it would have to go state by state and i what about those four though minnesota new mexico right i mean i think that we're not trying to argue that every single state here would necessarily not adopt the continuing violation doctor and i do think the court would have to go state by state and if i could just make sort of a broader point about how i what i think the court should be thinking about  in that analysis i do that some caution is in order here and that's for a couple of reasons caution before the courts after trying to predict what all of these states would do you for one thing we're already in an area where  federal law and state law are deviating these are states that have decided to allow in direct purchasers to sue for damages despite the fact that federal law doesn't federal law considers them to promote so i think there are twenty two states that have done that is that right i have believe that's correct you know is that approximately right the twenty two number i believe so yes and are they the twenty two the biggest states to i'm not sure as i stand here but you know california your contract and keep going that certainly wouldn't surprise  do think that would do you have to decide whether each of the twenty two states would would favor the majority or the descending interpretation of the doctrine in our own bank decision i don't think so you're i continued violation that well let me step back for a moment i think that this court would have to look very carefully each state to determine what the scope of its current continuing violation doctrine and how do you apply and i think that's another reason that this court doesn't need to get there i  states itself or decided that that if you were going to do that you would want for their briefing on that first if the court were to decide that it might be something that all of giving us a lot of briefing on it that is for sure and it's a high quality briefing so we've had a lot of briefing on that but i do think you're a couple  reasons to be cautious in addition to the fact that states are already deviating from federal law and i think the court should be careful course generally are careful before they expand liability particularly in the antitrust context where the states have not clearly done that themselves so the states have already expanded liability to allow in direct purchasers to sue but i think there are significant policy questions raised by the question of whether indirect purchasers should be allowed to sue on a continuing violation theory based on later in time purchases that is something that the state might want to look at very carefully because now we're talking about plants that are remote both in terms of the transaction and in terms of time and i think more generally reposes really important in any trust cases these are cases in which that companies may be engaged in commercial conduct that is entirely consistent with with lawful conduct and as but also could be subject to an allegation of an any trust violation and as time goes on it becomes much harder to to marshal the evidence to sort out what is going on in these conspiracy allegation which by reason of the illinois bridge must be resolved by state law and a national class action is filed in the court has gleefully undertaken analysis of a of a difficult a trust issue state by state i'm not aware of one as i stand here and i do think that that is why the twamley issues here are a much more straightforward way for the court to resolve this case this is something the court has already looked at in the i think it's very clear under the principles stated there that the court can look at these claims and say there are no acts there are no communications there are no you know actions in the world that would be inconsistent with you know lateral self interest there are no allegations appropriate to keep that in mind here and what actually happened in the world over the past few years the end and you know settle these cases they they paid into multi million dollar settlement funds and i think you know at that point understanding most of these claims  these claims have been addressed and the f t c investigated a narrow subset of that conduct and the companies are now subject to that f t c order i think in light of all of those actions the plaintiffs would have to point to far more here to raise a plausible inference that there is some conspiracy continuing on a particular perspective the prospective relief in the sherman a claim if there are no from the question well i'd like to ask you these so called something else i don't believe so and i think that's because you know i think this case provides a great illustration that we're already in an area in which the states are deviating from federal law so i think that although there are general harmonization you know statutes out there each state presumably has places where it can deviate from federal law as a matter as a policy matter and so i think you know substantively are we already in one of those areas because these if you look there's no authority where we're state is clearly addressed one of these statutes that's correct as i stand here i'm not aware of any authority that says that or that has addressed that in that way but i think they have been cited many times in passing for right but i don't have to tell you sort of propositions right but i do think though that there is this general principle that courts federal courts around the country have recognized that there should be a course to be cautious before they predict that state courts or state law would expand liability particularly in the antitrust context and i think as i said and so i think you know these states may make different policy determinations and so you know that is something i think that you know the court would have to be very careful going state by state and and that is why again we feel like the twamley issues are there they're presented here the complaint allegations are sufficient in particular because as respect as regards the original agreement to fix the phil levels we have a very robust story of how that came about and what happened after that is and is alleged can see in the complaint is that the prices did not decrease the fill level did not increase and sales continued into the limitations period that issue was already resolved in the plaintiff would add that there is certainly no way to determine on these pleadings that the defendants have withdrawn from the conspiracy taking the affirmative actions they would need to to disavow or defeat the conspiracy they certainly don't claim to have unwound the tanks on into into the future everyone you know it's it's generally known that propane tanks continue to be sold and and the allegations are that that the conspir effects continue the as far as the questions of state law are concerned yes as the court noted these are your questions of law that i can determine now rather than on