five minutes of rebuttal time ok fine thank you title insurance companies in new jersey have operated in an under regulated and under enforced environment for decades to the public under regulated does not mean un regulated under regulated does not mean unregulated for sure and i will get into it in a moment the structure which i think is the foundation of the not just the should billet he probably of the filed with doctrine the district court erred when instead of taking these factors into consideration it held that the filed rate doctrine applies automatically any time rates are filed this the federal filed rate doctrine does apply to each of those schemes the rule announced by the district court if adopted here would make one of the more roundly criticized federal common law doctrines virtually unassailable to create that automatic rule if you file it applies makes challenge impossible you found the rates were approved exactly exactly not just issued billet brings these two should we allow this kind of challenge to take place the supreme court in square d i had before it an issue of whether to extend the keogh doctrine in the context of the interstate commerce act it spoke very carefully about the intersection of the antitrust laws and the interstate commerce act and the crux of the square the decision wasn't whether to extend the doctrine automatically to new industries where there is no story decisis concerns it was whether in the context of the i c yeah they should still apply even though there was no hearing as there had been in that was the leading group of people who objected but they didn't do it and isn't that all that we're left certainly that's the crux of the issue here whether to hold that the doctrine applies automatically without respect to any rationale or purpose behind it or whether if there is no starry decisis concern because it's the first time that doctrine being asked to apply to a new industry there must be some principled reason to apply it all the cases including squared the talk about the two underlying strands of the docket how many jurisdictions have actually held as you are really the only one that described the the doctrine in brown really even in terms of going through his own because prudent seems to be an outlier right the other two cases really didn't get into the fog of doctrine so you're really talking about one case we're talking about we're was critical at least acknowledging just judge friendly's criticism of the file rate doctrine it never mentioned in the opinion that the doctrine was intended to extend to all industries automatically instead it's it spoke specifically about the fact that congress in the six and a half decade since keogh to square they made repeated not repeated but amended the i c i several times and knew of chios existence and chose not to disturb it you know i it's determinative in the context of the start of the i c a it's determinative in the context of if a court finds for other reasons telecommunications utilities there are the principles that are present and the doctrine is held to apply the effect of the doctrine is that consumers are out of luck there is no challenge i think you have an uphill battle i'm just wondering hearts think your best argument is there really isn't much support here's your honor let me get right to the crux of it i guess you better the cornerstone of nontraditional bill it has to be structure it's implicit in all the cases without an adequate regulatory structure there shouldn't be a displacement of the antitrust laws in favor of a regulatory scheme that doesn't wish the best case for th proposition that new jersey legislature did not intend to establish a regulatory scheme involving title insurance without regulations promulgated by the commissioner of banking insurance but you know that's exactly where the board and those some say an undemocratic way make a change because we're talking about displacing one of the more fundamental economic doctrines in our law but i don't see any way that we could displace the doctrine and i think you ought going primarily in the language of footnote one thousand and six where de if that's what the footnote says and it seems to me that put no there is saying that kill cannot be interpreted how do we not just place the state regulatory apparatus because your argument would lead to an all too oblique to us having to look into look behind the curtain if you will and look at the quality of the state regulatory review and if we determine that the state regulatory review was not adequate or the consumer didn't have enough updated challenge rates then we would step in and say you're great that the state determined were fair reasonable and nondiscriminatory we'd have to displace that and context seems to me that we then displace the commission of insurance where that's the regulatory authority of the mr commissioner of banking if that's the very literary agency in the federal court then determines the reasonable and the pick ability in the brokenness of their reach and i don't and that's the whole reason for the doctrine being there in the first place chief judge mickey i don't i don't think that the issue is as complicated as you've expressed if the legislature in new jersey said to the commissioner of banking and insurance here's the statute it's enough to go regulate or if the legislature said here's a statute if in your judgment you think you need regulations go in promulgating why didn't  know if i'm right in there that why didn't i thought that's what we did in new jersey did not new jersey has two provisions in the title insurance act and section forty and in section forty nine where the legislature of new jersey commanded mandated the commissioner to promulgated regulations to put meat on the skeleton it is not the intent of the legislature that this title insurance act was to be in place without regulations and because of that it is not being title insurance act i think alumina it's an answer to to your question jets over the purpose of the act section forty one is to promote promote and protect the public welfare and it's to be liberally construed i mean it will not it's like a button that there the rationale for the doctrine of it's foundation there there is in the rationale was it least in square day that kiyo should continue to apply over the rationale for the doctrine in telecommunications and utilities but we're not in i mean that one maybe but we're not in those right now we are in insurance title insurance in fact is a policy on my desk up there for various reasons personal reasons for title and signs so why should we jump to those i mean that's why the supreme court has said that's what we do i i really don't understand you are basis for going beyond that my basis is that i believe when you look at square day and you strip away starry decisi nothing is left of the opinion certainly nothing is in the opinion nothing that says that the doctrine is to apply what a matic lee without regard to the lying rationale or principle to the to a new industry the case is what is the new in case like this where a chord is being asked whether the filed rate doctrine applies there is no case like there is in other in telecommunications or in utilities that has gone through the process of the terming whether the underlying blank slate keo is not a blank slate and that means what it says yet and what it says is that if in my view if we have to look at the jews trends yes it support the rest but i get stuck there because even looking at the two strands even if i accept that seems to be the basis for the rule applies to full force to title insurance unless we accept your argument about the hearing no new jersey title as i said is has an insufficient structure there is no mandate for there is no way in which you could challenge it if you decided to do so  citizen in new jersey who purchased title insurance yeah can approach the commissioner and a commissioner within a thirty day period could determine if the application was filed in good faith and if so they could act on it and that is not a way that challenge them you have commissioners in sequence have done nothing we have to remember too that it isn't just our case that's critical of the fact that there's no regulatory structure in place that there's no regulations at all so this is this is i think an easier call department that has ignored the will of the legislative body when we talk well if the legislative body excuse me for interrupting but if the legislative body really wanted to do something they would just get together and come up with a new scheme and they haven't sent the legislative level legislative body hasn't really shown any interest in doing that it doesn't mean that the public doesn't have an interest that the legislative body doesn't have it i don't think you know that's that's a political issue as to what makes the legislative body do that which the public wants but if it hasn't done it for all these years i doubt that there's much one behind it you know th whole this is the f t c versus tyco redo right right here i think the whole issue as as that case went to the supreme court through this circuit was this tension between well is the structure enough is is it enough to give the commissioner authority and power to actively supervise order or is there something that's needed beyond it and what i'm arguing here is we don't even have an adequate structure in place in the reason we don't have an adequate structure in place is because the state of new jersey did not intend the title insurance will be regulated in the way it's being regulated this is i think and an easy call i think that when you have a mandate that's very you lost me there why what are you basing that on the these rates are consistent with the state regulatory scheme or the no they're not the rates well there's two parts to the question the rates are have been approved but the regulatory scheme and there was a hearing lo is questionable whether there's a hearing there was a submission and there are letters in the record saying that the commission has approved the racists so there's a record right ok so what do you want they have what what is needed in new jersey is what the state legislature mandated they said that it shall be the duty of the commissioner to promulgated regulations that and maybe you ought to be talking to the legislative committees i mean it seems to me you're going the wrong form today as well i believe that in light of the filed rate do and the precedents that we have you're asking this court to go out beyond what other courts have done so far and to get into this whole doctrine and i just think you're better approach is probably with the legislature justice o'connor certainly if as a citizen has several approaches available to him or her it isn't improper to choose one over the other perhaps not but it isn't improper for the court to say you in the wrong place either this the issue i believe in new jersey is so fundamental and so fundamentally deficient that it hasn't come up in other cases where in we go and in square d  in the telecommunications cases there's an implicit acknowledgement that the scheme in place was created pursuant to legislative intent we don't have that i don't want to belabor that point but you must know that point because you did see that but then you go beyond that and say you suggest that somehow these are illegal rates under state law and i don't know why and i don't i don't believe i need to suggest that the commission is actually ultraviolet ultra vires what i'm suggesting is that square d s rationale should apply to a new industry if the underlying strands are present what i'm arguing is that the underlying strands are not present here for several reasons more  ferguson very quickly we've made an argument in the brief and i don't want to spend time here that title insurance isn't insurance so if in fact it's not insurance mccarron ferguson it doesn't apply at all but let me just assume that it is insurance for the sake of this argument there's two things i think we need to look at the purpose of mccarren ferguson and we need to focus on the activity that we are centering our litigation on the purpose of the obviously is to provide a limited view immunity to protect the sharing of lost information congress recognized the need for insurance companies to be able to pool that kind of information to share it so they could properly a new it ties risk and be able to better underwrite policies now that i think illuminates the issue of the activity the activity here is a pure and simple price fix we fix it's a pure and simple price fix the activity in order for it to qualify as the business a business of insurance under well drug and perino and insurance brokers must have the practice and effect of spreading and transferring of risk we know the c n n your complaint that some of that takes place right that goes to the issue of is it playing insurance brokers main makes plain that it is the activity that's the focus when you're looking at what is the business of insurance and we say that the activity here getting into a room the rate making real and sitting down and never talking about underwriting never talking about annuities ation never pulling statistical data and simply sitting and saying we want to increase the title insurance rates doesn't include any conduct that involves risk writing or risk transfer and there's a lot of support for that assertion we have findings of fact that were made by the administrative law judge an f t c versus tykwer where those findings said exactly that  seventy eight cases filed in twelve jurisdictions around the country all alleging the same thing so that there and that a lot of people think you're not doing the right thing right a lot of people were wrong because every and the law in square d it is clear that once the rate has been filed and i don't mean by that the proposed rate the a process is we propose a rate the superintendent insurance must make an affirmative declaration a finding that based upon the standard in the standards set forth in section seventeen forty six b sections forty two to forty five the standard i'm not aware of a comparison although their wrists a national so ca should have insurance commissioners and they have access to all the filings that are made cross the united states regarding title insurance r out i don't know what the answer to that is point simply is that the there is a standard standard was as a standard which was determined by the new jersey state legislature and the superintendent before allowing these rates to be filed must approve those rates according to their standard you should just note in passing and i don't think they've ever challenge the fact  with specter all of these rate filings it's simply the case that we rarely if ever have received what we've asked for so the footprints that in the record yeah parmeet is that new record of course it's in exhibits the pattern correct ask the question of regulation that some debt as a that's not a mandatory requirement that have regulation and frankly in view of the standards which are specifically set forth in section forty two to forty marketing costs are so forth and communications with policy agents are are all within the scope of the mccarran for this and that so that's clearly something that's that's contemplate first this is not like perino where we're talking about doctors w that five percent or less of the premium is paid out every year so they can see that in fact there has been a risk the risk has been accepted and the risk has been spread what they question is how much of the how much risk would qualify for insurance i don't think there's ever been it a tax it's a task that says that you have to have a certain amount of risk in order to have a say in or to qualify for insurance frankly if one looks at the state of new jersey state of new jersey policy decision is to the contrary state of new jersey has stated that before you write a pos of insurance you must do a certain examination it is reckless and against the public interest to write and tiling surance on a risk only basis and we don't do the i would know just in passing there's a separate charge for title for search and examination and that's not at issue in this case what s what s u c vs variable annuity says it's very clear there's either a risk or there's no risk here there is risk the risk has been assumed and the pla are basically asking this court to make a failure of judgment that there are should be more risk for as the court noted below in the from the perspective of the policyholder when  which could not have been discovered and those on for and the homeowners what policies and these are policies which they're not warranties you know if you look at your policy you'll not see  policy and if we lose that defense we we will sell up to the amount of the amount of that policy so it's an insurance policy it is nothing other than that and where the point is simply this  d the point is that in title insurance when you buy it you're exposed for a long long time you know it isn't like a car insurance where you buy an annually and you know what the  you either going to find a risk is going to come to that year or not you have a risk which you would which first long as you only have policy or until you re in refinance you are exposed for for that risk so the amount of pay a payment of claims does not correlate with the with the risk which is which assume the risk can be very large in relation to the amount of p rating bureau where people gathered information they jointly determine race and they jointly filed race that's exactly what's happened here is that really just price fixing part of me is not really just price fixing i mean  that option new jersey took up that option so yes this is a regulated industry and the very fact when you're dealing with a regulated industry is it's a determination that the that particular jurisdiction has decided that race will be sorry i'm sorry yes there are rating bureaus that don't involve price fixing automobiles so i'm sorry there are really wants to hear what you have to say and sorry there are rating in other insurance schemes in other regulatory schemes that do not involve price fixing auto insurance competes vigorously for customers business life insurance companies other companies compete insurance but the risk here is very very different from the kinds the risk that you're talking about exactly let me let me speak to that first point as reading bureaus exist but but not always exist within the context of price fixing the activity is the key here if the defendants walked into a room with a box of documents that had the actuarial analysis the statistical data that the insurance companies needed mccarron ferguson says is necessary for them to share and they never open the box and they sat around the table and they said we're going to double the price of our insurance policies and never discussed anything in that box it is not the business of insurance even if it's an insurance product and even if it spreads risk right now not now but he would know it right did that well we know though because we had an f t c versus tyco or an extensive record and we have fact findings that were made in one thousand nine hundred six but in this stage of the litigation twelve the six without discovery it is clearly a well pleaded the read in as part of that complaint you're basically saying that the great if you haven't heard by the side deals well your focus is on the rate the injunction is aimed squarely at the rate now you're saying there's no risk taking in the rate what i'm saying is this the activity is when the defendants walk into the room and don't open the box of statistical actuarial underwriting data and they agree we want to double the price of insurance and that's all they do that activity is not the business of insurance and that's the activity that we have framed in our complaint it has nothing to do with what mccarron fergusons purposes this is just pure and simple price fixing in and it if you look at their two thousand and eight submission it's in the record they referenced that they don't always get what they are they get what they asked for in the only submission in the class period what they did in two thousand and eight they said they submitted an application they said that there were two rates standard rate for an owner's policy and a lower rate for mortgage policy we want to combine those two rates into want we're going to lower the rate for the owners policy we're going to increase the rate for the mortgagee policy they forty days later getting approval we all know what happened in two thousand and eight the real estate market crashes no one is getting on his policies so they in a rubber stamp very neatly gave themselves an increase for the mortgagee policy putting aside their motivation my point i want to make here is when they made that application it's in a one hundred sixty a one seventy you could read it ten times over and not see one iota of evidence in there that there's anything having to do with insurance they just wanted to combine two rates into one and they wanted to raise their mortgage rate to take advantage of the fact that interest rates are falling to historic lows and they were able to pocket the fact that everybody who could was able to refinance have you tried interesting the legislature in your problem i'm very bad at interesting the legislation you know i haven't but but you know the point is this and are there other avenues available to anyone in the scheme of life in the scheme of litigation of course there are but we're here because we don't believe mccarron ferguson applies and real quickly because i have twenty seven seconds the file rate doctrine is not a complete limitation on this action there are cases after cases including square d it says that all file rate is an exemption and all it prevents is a trouble damages private action injunctive relief is entirely appropriate here eight seconds to go thank you very much thank you