anticompetitive effect of exchange rates and gave them expressed leave to go ahead and to file the complaint even part of the first amended complaint if you are one fourteen and there was an editorial differences between that in the end the second they thought were certain problems with the conflict and there was an argument over that and the court ruled yes there are problems exist but there are problems that are never been identified before the plaintiffs are never given been given a chance to correct and what the court said because you've previously pleaded in this case for a couple of times i'm not going to give you a chance to amend i haven't given the opportunity plaintiffs would have undertaken to correct the problems of the court identified and then if they were unsuccessful in doing that the court would be on a  after this proceeding it goes back for another amended complaint this court will be giving guidance as to what has to be and what doesn't have to be in that second and then complain and plaintiff will comply with that but but at this point we don't even reach that because plaintiff  motion your first issue for just because we do have limited time in there a couple things that i want to spend some time on that based on let's let's assume that if you lose on that issue change had to do with consumers in the retail purchases this case has to do with with dealers in their wholesale purchases and it was just a sort of a coincidence that mr gilley happened to have wear both hats he was a retail i know there is a lot of ways to get in this missiles under rule twelve but this is the loop little unusual to an effective summary judgment on any issue and then have discretion in a three fields or to allow you to pete one more time in an effort to get into some area of the law where you would have a future absence a claim for totally than what the court was about to permit you to do because i think the court told you lose it in effect you had to prove that or you had to plead to somehow that each of these separate contracts standing alone without regard to any conspiracy that's off the off the table now would constitute and i competitive tranda isn't that what that's right and that prove to pursue that theory as a matter of substantive law hasn't it already ruled on that in effect the plaintiff will not be allowed to pursue the theory that defendants agreed among themselves to enter into the specific  although i don't think that's required by ruling planets are perfectly willing to do that they just weren't given the opportunity to do what specific facts would you have alleged if it just recorded granted you imagine well we would have taken each agreement and said in th that has the effect of taking about twenty percent of the car gas out of this limited market and shipping it in the form of conventional gas outside i was can see that this is not very plain exactly on that paragraph but that's the type of facts that would be a can't make those specific allegations about they'll drop out and if they don't drop out certainly nobody in the defense will be quick to make them drop out well part of the problem you had here white you had the agreement she knew i had some general market  to do that we believe that they have been already has three opportunities to do that and it's been very clear that there they have been on able to do that and that's why judge masipa was just stated at the end of  be acceptable then this court has to look at whether or not to court is correct on the substance does it not and it's not a matter of discretion anymore  if the trial judge could would say in my discretion you had enough opportunities to state a claim and therefore i'm not going to give you another opportunity that might be ok but if the court said you had lots of opportunities and now at that stage in this case where the court is saying these individual contracts do not contact on constitute and i competitive conduct and therefore you can't get there from here by pleading well generally order which is not challenge here is as a admitted and therefore that is binding on this court because it has been appealed he said that they would have to allege and i competitive effect from the individual exchange agreements and i think the extent to which he then predicated his is mark's twenty seven order which is on appeal here on their failure to comply with that decision i believe there is an abus the point where it was going to allow the plaintiff to file one more complaint it said quote in effect here's what i want you to relent here's what you get to a moment as opposed to listening to the plaintiff saying here's what i want to arrange and the court saying i don't care what your alleged when you get done alleging all rules well that's a little different than saying to a party here's what i want you to litigat this plaintiff really ever been given an opportunity to i'm in a way that would allow that party to say here is the issue i want to court to the sign yes your honor i believe they have i believe the chronology only once now i believe more than once and i would invite the court to look at the chronology that mr kagan laid out because essentially we have to back up to the aguilar of heloc briefing and sometimes during the heloc work the plaintiff decided that since they were unable to prove a contract combination of conspiracy and an overarching sense they would say what we can dispense with adamant because we have the written contract that will satisfy complaint was very tempted to allege exactly what they say they want to allege now which is that the each individual exchanges and then had a hand i competitive effect and if anyone has any doubt about that one one should review the nov twenty ninth transcript of the hearing in front of judge last which is which is why we put that into the supplemental have to observe the record in that hearing judge mosque with said here's the way i read the one teacher education for what you they tried only one time after the court had ruled on summary judgment you know true there's that is certainly true and so we have only one complaint that he is one of many complaints filed after the reasonable business transactions that generally i think everybody agrees with the complaints of they're generally pro competitive and so the question is can the plaintiffs alleged facts with regard to any of these forty four agreements to plaintiff complaint only to the extent that alleges that each of the bilateral agreements have unreasonable anti competitive effect and therefore violate sherman and you are one twelve page well first of many complaints but again that's not what happened here i would i would take just a few seconds is to discuss the issue of what went on an ankle are because that seems been raised here i was also i was the supreme court counsel and  well so again i'm not saying that that the complaint is perfect i'm not saying i'm quite can't be improved but i'm saying that planes were not given the opportunity to address mistakes or or problems that were pointed out to them