california oregon border index price the contract was not with any of the defendants but with watching certain utility in oregon the dow powered was freely chosen by the watching and pacific or as a proxy price for the power in the quad chain would be purchasing that is the that is central to how our suit differs from the others that have been dismissed in earlier decisions by this court unlike other cases we are not over charges or any theory of that kind lying in in a nutshell is that what you're seeking the functional equivalent of that however your honor because the nature of the way we purchase power was so different than how normal turns actions occur we tied to the price that we would pay our utility to this indexed price so all whatever happened to the index happened to our power price we in bringing these claims are not under the federal power act we were the wholesale purchaser well you know you're sort of talking around the the practical question that i mean asking and that is in order to prove damages assuming you could establish liability in order to prove damages is a practical matter why isn't what you're saying why wouldn't the proof of damages way our contract was structured the court could reach the damage calculation without trying to substitute the courts just for how the wholesale price should have been set out how we were purchasing under this special contract the because your honor the for example in our wrongful interference with contract claim we believe that one of the measures of damages would be to put us back in the position we would have been in had we not been purchasing at the  that would be a way to measure damages that wouldn't you know that's all that's that's a theory of damages but the measure of damages why wouldn't the measure of damages be precisely  thing a claim that the prices were unreasonable to that extent because the court wouldn't have to recalculate what happened in these wholesale transactions to reach a damage calculation it could use the retail tariff of the civic or we also suffered consequential damages what consequential damages because we shut down production at one point so the making of the metal products that my client types of damages that nothing to do with attempting to recalculate what went on at at the california order oregon border and then of course that we believe that the state claim i'm wrong for interfere with contract can be calculated with a with a price that does not involve any further related prices it simply would put us back in the situation that we would have been in had the contract not how do you get anything in terms of damages out of it you're i think you know you say well yeah i don't i didn't like those rates those rates were too high for me so i bought a generator that's not the point because the first step to the argument is taking that sounds unduly scholastically me because the whole if i understand the basis of your complaint it was that you were having in the sack you were having those wholesale rates passed on to you is that not right they were being passed on  numbers at the bottom the bottom line is you're saying that their response will because their rates were too high i just don't see how one avoids that i can herald i think what you're saying but i just don't understand why we think that it's charge a zillion dollars a kilowatt hour and folks had on and that's with them and that influences all kinds of things and so you're having to pay probably  when we wouldn't it wouldn't matter that's where the rates were if it existed in the us too otherwise you have no damage and it's a summary judgment based on damage you have to have injury of some sort i assume so you're saying well we believe that because of the nature of the actions that we're bringing that we have to be able to if we can establish that the claims are correct that so long as there is a way to measure damages that doesn't simply borrow from the federal energy regulatory commission that we are different and we believe that differences is a very real difference i have a different question  if if the dismissal were appropriate why do you think you should have leave to a man put differently what additional different factual allegations would you make  to a man they would go primarily to the consequential damages suffered as a result of the defendant's actions so that we would be able to elaborate on that exactly how the last production occurred exactly what actions watching by your district court and our claims because our claims do not rely on proving violations of either the federal power act or any of the first tariffs that we are like that power  energy trading during the power crisis we believe that watching is the one company that these entities are liable to if they knew or should have known that there were retail market based contracts out there the card index was intended to reflect a real competitive market and in real competitive markets actors are liable for violating state and federal antitrust laws as well as rico were wrongfully interfering with contracts the diner's you case in that  case the outcome of this appeal and i like to make five basic points organize my argument around the five basic points the outcome of this appeal is controlled by a series of prior supreme court and main circuit cases holding th argument rather than on the nature of the allegations and the complaining watching expressly and repeatedly in the complaint alleges transactions that occurred in the interstate commerce no less than seventeen times one of the question joyner is very very clear if you look at this complaint that they are seeking damages based upon the idea the notion that the whole star prices charged by the defendants that were that the fact that the conduct originally controlled by her means that any any ripple effect from it is necessarily preempted i mean is that the heart of this party or that is probably certainly part of the logic right i have a hard time still quite following the logic of that because these folks didn't buy directly from you correct but they're claiming nevertheless that the and therefore i can say with some authority or at least confidence that the conduct described in this case is this thing as the conduct described in those cases if you look at the summary of the matter what about the damage theory i think that it's helpful if you think about the question in terms of and i trust injury the supreme court in square of regulated market then you can't show that and i trust the injury is occurred because you can't assume what for could have done in that market here regardless of the damage retail and well you don't get to consequential damages because you're cut off by the need to show and i trust injury and you can't do that the injury so t kara's at least preliminarily established an adjustment in host real power prices in california in the spot markets i think the answer to that is no for several reasons the first is that if case is controlling here in this case the court looked at the nature of the claims that the plaintiffs were making and not the conduct that occurred and found that in power  because the court does not need to read determine what these wholesale transactions were were not we weren't a wholesale buyer and we were like an honest lost simply a retail buyer complaining that their wholesaler paid too much but the difficulty how can you well there is well we believe that if we truly and i trust violations that the the court doesn't need to unravel all of these transactions like they would have had to  could be our own that we're not saying that's the only way to calculate damages but it is one way this court must determine if this case is more like power x or more like diane or g and we believe that we're like  situation where if we don't have an i trust remedies we apparently have no remedies in the law can't possibly be that if you choose an index like this that no matter what the defendants do they're immune from  reformed we believe that in the event that we go forward with our claims that there's no possibility of double recovery here that anything that we would gain any of these other proceedings would be offset against anything we would we would be