sorry my computer's hung up your honor maintained that they were in frequent individual negotiations supervisory maintains basically you see price is a sticker price and its price match is however common widespread or readily available don't constitute discounts under any contract or regulation district court appears to be super value the foundation of the courts current safe coast opinion is its adoption of defendants characterization of their program as individual lives price matching that finding is irreconcilable with the court's previous falsity opinion finding the superdome offered a nationally advertised discount program and that the discounts are or are not one title or cash prizes but offer over multiple benefit years reports recently that would it really matter even if that were the case because it seems like that per to cure lerner issue is directly relevant to what you did w garbage but regardless of the nature of the discount program here the question comes down to under safeco was there in the was the defendant construction objectively reasonable was there any type of authoritative guidance there so whether this is a program magic or an infrequent occurrence a contract a p p o contract with medco in particular that specifically entailed a definition of usual customary that included competitor price matching but with that that's the retail pharmacy superguy in this case those contracts are not optional folly they must be followed and when i met justin they wouldn't they don't have to be followed and maybe there's a different breach  contract or some type of cause of action for that but you're suggesting that because of that one ppm contract that the underlying factual description of the program it issue would matter and my question to you was how is this authoritative guidance which the supreme court in safeco said is what matters for the objective reasonable mr terminations well objectively reasonable aspect of your question then your honor so there's really a right at there that you would be great if you could address the objective reasonable and what links into that please is the authoritative guidance regulation requires compliance with all applicable medicare guidance and instruction this federal regulations present in fact in every pete young contract the supervisor has supervise executed those must comply the provisions are contained in the denby to the short appendix that we filed so the court has that but so the suppose reasonable interpretations a supervisor who offers consists of billing laboratory tests there's a cover letter to the g a o of which actually predates medicare part d and in virtually all of the contracts most i can say safely most of the contracts that supervise executed continue u n c definition that entails including discounts available discounts any discounts applicable discounts and the cover letter that they offer actually refers to the definition that as you and see as an undiscounted price now that is there is no basis m contracts that say otherwise i believe it was the express scripts contract that expressly excluded a competitor's matched price so it seems like you have them on both sides but again i come back to your relying on p p m contracts is that authoritative guidance by federal regulation is your honor i mean they these defendants relator is arguing that two sales of a prescription within three months or something like that and according to your theory are enough to make a usual and customary that seems pretty improbable on the other hand you're saying that  they asked what the vast majority of the highest volume drugs are sold at the discounted price systematically and repeatedly and that sounds pretty usual and customary to me so i guess i'm what i'm trying to figure out who's use is how best to quantify this practice and whether that can be resolved on summary judgment but you're out of the two sales in a three month period  and the this that's strictly a damaged model and the reason for the two sales is because we wanted to avoid the idea that example listed in the lower cash price policy at the one time  of we do not believe that usual and customary requires any particular number for instance the image of a majority type argument course you know that manifests obviously that a lot of discounts are being given but the there's no specific price we didn't have to discount formulary so we're different we're not like wal mart that's just not inquire is that this priced lower discount prices were always available over multiple benefit available the i thought your position also was that like to get your thoughts on the customer initiation which seems to be the focus of much of the defense briefing but i'd like to get your thoughts on the two mid twenty's twelve the pharmacists were required to mention a price match guarantee to beneficiaries coming in to anybody coming in at a particular cash customers now the court pricing policy of super value did not require there's nothing about a customer asked for carmen it was only after that subpoena issued that supervisor changed its official pricing policy to incorporate  customer asked her customer initiation requirement could you address more specifically how you view the different parts of the statutes knowledge requirement in their interaction with safe i think that that seems to be one of the principle legal debates here about whether actual knowledge and deliberate in the safeco context that addresses the objective aspect of the defendant state of mind whereas deliberate ignorance ignorance and reckless depends and actual knowledge address the that safe go applies in the f c a context is limited to the deliberate indifference only i mean the reckless disregard only that that that appears to be the  almost a riddle because if you look at the definition of reckless disregard as this court is defined it in in that in the king basle case it was a a would lead a reasonable person to realize that harm is a likely result of the relevant act but the court's going to say that in the shoes of the individual knowing what they know act a requirement that as the supreme court held an ask a bar must be quote strictly enforced and quote to ensure due process and fair notice and the application of that punitive statute now in this case is the discussion to show on the alleged falsity it is you terms on the interpretation of a disputed legal question and so the question that you were just asking a judge may need it would be almost metaphysical to say that somebody can know that they are acting face of testimony from the defendant's employees that the defendants quote knew they were applying a wrong definition in quote found that that was irrelevant because the inquiry was an objective one and that was consistent with the supreme court's recognition that there shouldn't be a liability if there was consistent with an introvert taishan quote could reasonably have found support in the courts whatever their subjective intent may have inquiry quote concerns objective reasonable needs not any one state of mind in quote page four hundred and ninety of the van straten opinion and i think it's also consistent with another line of cases in which this court dispelled that there can be no false claims act liability over disputes of differences of interpretation of legal questions this court held that in ya koppel is that the false claims act does not impose liability for quote differences  interpretation growing out of a disputed legal question and it reached the same conclusion in marshall versus woodward lammers versus green bay and and sheet metal versus morning as well all of those cases are supportive of and under luke the common law yes one is broader than in subsumes the other but through be sure there are different ways of proving one but that doesn't mean that you can suddenly bring in sort of somebody subjective belief about what a statute would would mean or in this case a regulatory obligation would would mean and give a different result them then what was it issue in safeco and indeed i think that the supreme court is the language of the statute didn't do any work i think it recognises you know time tested common law ways of showing c enter but that doesn't mean that one is not subsumed within the other is necessary certainly guidance that warns away think of it as sort of a a chevron typing where there might be multiple reasonable interpretations once there is authoritative decision for example the supreme court had done a five decision of a court of appeals is being such a authoritative decision at that point even if you were view was otherwise objectively reasonable you've you've been warned away and george hamilton coming back to answer your question if i may the issue that we're dealing with here is  cmdr standard where the issue is a disputed legal obligation not talking about whether there issues of disputed facts in this court of course recognized in you know how it was that there is a difference between interpretive questions and  fact it may very well be that regardless of whether or not recklessness what lie if somebody had subjective knowledge about historical facts that would present a different question but that's not the issue it's presented  matching was affecting its usual and customary price if the question you're asking is lab evidence that they relied on a particular g a o report or anything along those lines i don't but i can give you a couple of concrete example questions i wanted to i guess i wanted to get your your input on was the evidence from relate or to the effect that i think the way they put it out of the top fifty the i volume drugs forty four were sold at lower prices than you reported a majority of the time in thirty more than eighty percent of the time do you have a response to that evidence whether or not it was usual and customary turns on the frequency of price matching and this i would think that that's pretty evident in usual what respectful judge h think there there are multiple parts to this one is what is what is your usual and customary price nd is who is the general public and i understand this courting darby addressed the issue of who is and who isn't the general public but certainly prior to going to be it certainly would have been at least objectively reasonable to think that somebody who has to undertake some sort of volunteer ie action in order in or to obtain a special benefit is not part of the general public that does that fit in with the evidence that your pharmacist were instructed to tell every cash customer we have this price match policy yeah i'm glad your is legit channels and it was a point that i wanted to come back to because that is not what the evidence that my colleague on the other side shows what he's relying on is the two that if the customer raises customer price concerns so we customer has to say something if somebody comes in and offers and asked to buy something at the cash price they're going to be charged the usual and customary price they're not going to get a discount it wasn't automatic and that also goes as to why i think it's objective leap reasonable and even if premise matching occurred with with with some degree of frequency it still doesn't change competitor name you confirm the price and it specifically says quote for all customer price inquiries mention service convenience and price match guarantee so it's only in response to the customer initiating a customer of the price inquiry that this is right now it's certainly true that in the two thousand and twelve policy that was changed and if you know that you can for customer present where is it just as mentioned service an inconvenience but the idea that anyone who comes in and who is in cash is going to automatically get it is not true and on the facts and it's not true under the under the policy in the back to the st part of your question  even look at a per year basis and this is you can see this in our one hundred and eighty eight dollars dash three page seven table for if you don't start cherry picking among the drugs if you look at all of the drugs there's not even a given year in wrong on the thirty and forty four out of the top fifty and not just hansen i'm sorry i've apologized for the confusion the point that i was just simply making is that it again overall i'm going to turn specifically to to the ones that they've cherry picked in a moment but even over but for overall it's twenty six six percent for they eleven years in question and overall for any year it's not a majority that's significant among other reasons if you look for example at the madison versus mississippi medicaid commission case where it discussed discount prices and it gave the example of discounts and which ones would and which ones wouldn't be counted and it said it wouldn't be counted unless the patients receiving the favorable prices represent more than fifty percent of the store's prescription volume that was looking overall at the entire store's prescription volume and similarly if you look at the guidance that was also literally anybody presumably claims are made on a per drug per prescription basis right well  that's right there are submitted ultimately on a per prescription basis but i think it's telling that when you look at the response from from care more from oregon from idaho from and also in in declarations from do tell any of them that you were selling these drugs for the eighty percent of the time at lower prices than you were charging them well judge hamilton i don't know what was specifically represented to to them at the time but i know this number one they have the course between falsity and c n c and i do want to come back to the faults of the c and your distinction because they're related as are trying to have it both ways they want to look at a blunder must approach for purposes of falsity and then they interpretation of the regs that the true price for some of these drugs was the price matched price but that doesn't answer the question you know he's a b c enter but if you disagree and think that there should be some slicing a dicing that should take place i believe that should happen not just on the issue of cmdr but on the issue of falsity we my colleagues on the other side is right to say that the two matches in three months you know you haven't state one page four in our one hundred and sixty four page eleven they specifically say that the frequency doesn't matter it would be enough if there was no price matching it was enough that you were offering to do price matching to change the usual and customary price think we pointed out that particular question wasn't in the petition it was a court it was a question this court had added it was a th question that this court had in which i think if anything you know heightens the fact that it was certainly subject to  said to a reasonable dispute because the the court to a spontaneous thought it was worth looking at the question of what constituted usual and customary price now that the case doesn't turn on and indeed doesn't resolve the question you know visa reasonable to have a certain interpretation and then three was there anything authoritative guidance that warned them otherwise do you agree with this three part test and my nd question is on the rd prong the d c circuit has said that the warning question is a question of fact as opposed to a question of law you didn't fully embrace that in your response brief and if you could address way and if i may just so i would point out the stretch versus our given case i think it's very analogous to the situation here where there was a dispute over over price and what discounts or credits counted or did different didn't i think the question of fact goes to whether or not you knew or should have known of the authoritative guidance not whether or not there was authoritative guidance it seems like whether there is authoritative guidance  definition has to be a legal question whether you knew or should have known of the authoritative items could potentially be a fact weston but the fact that the dispute there were that we're having here is whether there is anything that would with respect to some of the individual drugs and that is this you potentially find yourself the situation of of of having to slice and dice and ask well wasn't unreasonable dollars which one isn't becomes your usual and customary as opposed to being objective lee reasonable to think number one that you know matching someone else's price is not changing your own price and number two that treating  were given once a beneficiary received price match price matches for that individual basically went on autopilot the auto refill program automatically propagated the price for that  council it was talking about there there are authoritative guidance and this question is a little bit is a little bit blended because part of their explanation for their objective  back to the c m s guidance in the manual what impact should it have that the language you fight on a fight about price matching was removed from the manual in two thousand and thirteen your  coverage it of it allowed beneficiaries to avail themselves of lower prices but the need for that simply disappeared with with obamacare they  now if i may i see i'm out of time but