reverse to erroneous orders by the district court both of which were contrary to controlling precedent in the circuit those orders brought the sherman act prosecution of a per se unlawful customer allocation agreement in the seconds if if the camp has approached somebody first and there's three errors potential errors camp has approached one there but it's not yet signed that air and then blake and blake approaches can blake and blake not sign the approach to or and neither could they sign the two other areas does it give you this the agreement provide the guidelines provide a cut off base for order for closer prosecution of the case under the per se rule and it took the question of guilt or innocence away from the jury the second order erroneous lee dismissed the indictment on statute of limitations grounds and that was contrary to this court's decision in united states versus athens both orders raised important questions for and i trust in force and we're asking this court to reverse both of them if i may i'll start with the the rule what we call the rule of reason order in the very this is the order that foreclose the government from prosecuting the conspiracy under the per se rule for more than one hundred years your honour's the supreme court has identified a class of antitrust conspiracies that are so clearly anti competitive that they can be condemned as per se unlawful without any in korea all into their effects and this class of offenses includes price fixing did rigging and market division  let's do thirty seven thirty one there was no final order on on that was there any just final disposition of the case there's no final disposition on that issue your honor but we believe that there are cases in the circuit united states section one of the sherman act there's no different section of the sherman act there's no subdivision that is relied upon it is one violation of one statute very precise it is one violation of one statute i will agree with that but there are cases your honor  is the court wouldn't consider rule reason because you didn't allege that as a method of your proof that would be no different than saying i'm not going to consider a new witness you didn't list because you weren't relying on that other witness or i'm not going to rely on this this you know theory because you didn't do cases talk about yes it's a different category but it is to prove one violation and if you get rid of one method of proof you're not getting rid of the claim so i agree with you is that one claim under the sherman and the there are cases and i would point to the seven circuits decisions loom for example the first circuits decision united states versus the data the talk about distinct theories of liability and i think the point i'm i'm getting to is that there is the port for saying it's clearly a distinct theory of liability under section the per se rule didn't apply they asked for dismissal but my understanding was the court did not go forward with that i think they argued on the process grounds there was a due process argument that the oral not a good perhaps gotten there had the court addressed that argument and found against the governor government you would have had a dismissal but we don't have that well we really have don't we have just your essentially the government saying well we are going to choose not to proceed and we're going to say that right right out in open court we're not going to proceed unless we do so under the per se rule that's a good government choice it's the government's discretion but i'm like judge bell i'm not seeing where that is well i would point  a claim being going away with a ruling i intially why i would point to united states versus schneider for example where this court talked about the the the government's case and the prosecutors having some degree of discretion or to decide how to how to develop and present the case and what that what the court did here i think is not just saying well we'd like you to proceed under the rule of reason that saying you may not proceed under the per se the well established per se rule and so we we view that as in effect taking away the question of guilt or innocence ripped of a per se violation under section one of the sherman act taking that away from the jury in one sense and at the same time constrain prosecutor's discretion the executive discretion to decide how to put on a case which leads me to the point about mandamus yeah let's talk about that because we have to test on monday mandamus we have cooper tire that has three conditions and then we five extra guidelines of question the one number four says whether an order represents an oft repeated error or manifests a persistent disregard of federal rule so my question is do you need to satisfy all five of the qwest tests or would four be enough and is there evidence that this judge has repeated this error in the past or would we look at whether other judges repeated this error and if so is there any record evidence of whether other judges repeated this error i'm assuming it's an error now it may not be but renders i'm just making that assumption for our purposes well i would respond first jerad i don't think we have to meet every single one of those criteria i think that is enough here that there's no alternate means for us to get redress in the district court where do they fit if we are convinced this is true if we were to be convinced that the court was wrong not to allow a person a approach into just in terms of our of our  not there was a defense was available and mandamus was taught and granted it had to do with your instructions this is this is not that case we think this is more significant in terms of the impact on the trial that you would see  it's not just a jury instructions question but as far as the significance of the err i mean to that i mentioned earlier that the rule twelve issue taking the general question of guilt or innocence away from the jury and also the  prosecutor's discretion to shift the case that we think falls within the concept of the usurpation of power that is reflected in some of the case that is really quite extraordinary what the district court did here and we think that that does justify  appropriate for the court to have made that ruling at that point problem as it's a pretrial ruling your honor we believe that an extraordinary action by this judge well we think that what's extraordinary in this particular case think it's actually extraordinary and we wouldn't have thought mandamus we can't seek mandamus without seeking the approval of the solicitor general and we did that because we think in this context this is extraordinary and that's why we're seeing it really hard you tried to case under a rule of reason approach could you have gotten to the appeals court to challenge the purcell ruling i don't believe so you're on a ballot there were there would be a reason that we could not because if we if we were to try it under the rule of reason and the application of the per se rule if that would be helpful to the court there is also the statute of limitations which we haven't addressed at all and i'll turn to that last you have further questions in the issue of statue of limitations as there's a clear decision in this in the circu united states versus evidence that talks about a conspiracy the big reason conspiracy but what happened there was there's a question about that the statue of limitations and this court clearly held that receiving the payment on rig contract within the limitations period is sufficient to be an act in furtherance of a conspiracy that brings brings a conspiracy within the statute of limitations we have exactly that here and and i don't think you'll hear the defendant dispute that there were the not only receipt of payments on allocated contracts but there was also one thing more which is the division of those proceeds between the coconspirators that is the money came in and then they split up their old gotten gains i don't believe conduct the per se rule precludes evidence of the justification for an impact of an agreement it's a blunt instrument it's a legal shortcut that provides that certain specific types of agreement are so inherently evil so obviously at the competitive that ordinarily the government doesn't have to prove intent it doesn't have to prove any competitive effect it just doesn't prove you entered into this agreement and you're guilty of a crime here the government would just offer the written guidelines agreement and evidence and the jury would be instructed that the green is per se illegal and gotcha the cases prove mr maddox and kemp are guilty and we can move on directly the sense that preclusion of evidence is what the government that i'm not saying that wasn't the point of the agreement well it looks in all these cases one could argue about that and frankly the fact that one could argue about that is what takes it out of course they will if there is a time doing so here i believe but they certainly are free to prove that that's a rule of reasoned argument the question is is this particular agreement so naked is is so devoid of any possible efficiency in hansen that we can say we don't need to he any more this one is perceptive even it's a written agreement that enables us to look at what it really is and this agreement had an efficiency enhancing features built into it i don't think that a pursuit rule  fails on those particular applications where you control efficiency enhanced but i think that that it's the bigger picture of the pro se route per se rules are applied when generally these things are and i competitive and i don't believe that you can come in on a particular control our particular violation of per se happens to enhance efficiencies if this working standard of the reallocation but there isn't anything more unusual that you say this is so unique because it's error allocation and that's tracking down and it is small industry and there's not much effect every single one of those distinctions has been negated by i think the supreme court researching a particular state and they run into each other it's only in that very unusual circumstance which is to have the three and a half percent of the top of the cases and what distinction what why does it matter that it's new customers or a long interest in customer base what is i have to do with it it's not an issue of new customers it's it's that the agreement only applies when in this unusual circumstance where they folks have invested in the things how unusual was it must not and then too and you know it was it was highly unusual to have to read a half percent of the cases that kim did it's a very government state building cases this is unusual in that if two supermarkets say we only one only one percent of our revenue is from the sale of milk but we're going to agree with the other supermarkets to fix the price of the sale of milk already it's only it's unusual there's only one percent of our sales and it deals with new people and they don't come in all the time i mean some of the people are new up you wouldn't give them the time of day on that i completely agree with you that someone could disagree with the approach of the district court talk there was nothing nothing agreed just about the process the government moved for a argument this was a very considered decision the only thing the government is pointing to is considering additional facts at the rules well station two points on that the first is the only additional fact that the judge did consider is the guidelines agreed that there is no real of cooperate broached the case in that case there were two separate agreements edition there's no separate agreement reason we're here is the written agreement the court was well within its discretion to look at at that agreement and frankly the key factors about  that the particular unfairness of prolonged litigation against the sovereign which is also sort of what's going on here so i don't think you can put a lot of weight on those first two factors i'm not quite sure what would happen if the government actually  years later aug twenty sixth scene and they don't believe the clock the limitations start ticking still the very left the state that is the subject of any guidelines allocation has been completely administered but your honor is that whether the position that would result error location services signs are there there's a series of routine mechanical path that have to undertake like hiring lawyers from the acclaimed program to form monitoring the progress of these they all that happens but nevertheless the length of time it takes for the state to the specific central purpose of the conspiracy charge in those cases was to obtain a wrongful prosecution of the contracts that were being let out if i think people can spread around the bank here of the bank and one person gets all the money and they agree they want to drill that money out not too much of the time so won't be suspicious so the guy who holds all the money says every year i'm going to give you ten percent of the proceeds so we won't spend too much with that extend the sets are limitations to prosecute the case as frontal attack on the per se rule and i think the courts fairly clear about the per se rule and efficiencies not coming in what the point of that is and that the benefits of a rule so unless you have questions i won't i won't go into those i do want to address that joint venture point because i think that the court sees it this is not hope brothers this is not a real joint venture this is this sort of ad hoc thing that they want to label as a joint venture but the supreme court cases like top post say it's not enough just to stand up in court that the extent there are multiple factors and one of the questions i think evil you asked about whether or not this is either novel on the one hand or or somehow it's often repeated on the other sort of tells you that the factors are or not you don't have to meet all of them because how could something novel and off repeated and if we had to say we fit one of those factors this is novel in the sense that this is really unusual if you look at the market allocation cases that we cite it's really unusual for a court to say that  market allocation case or customer allocation case like this isn't covered by the per se i'm sure you don't need to prove them all and i'm sure there are some that are more important than others but what is also novel is it is extraordinarily novel for an a of the third circuit that was a mandamus case where there are erroneous jury instructions we believe that is it is like that and we don't think this is going to open the floodgates for you know lots of future mandamus situations like i mentioned the department of justice takes this and i trust in forstmann in the united states regarding the importance and clarity of the per se rule and it would be really in some ways to paraphrase decision called general leastways you need to wrap it up if we want to be