particular structures that were involved the that are the nature of the joint agreement itself the personnel who are involved in the different companies from microsoft and best buy the amount of the consent which this money is worth by identifying additional yes by alleging the type of personnel that existed under the structures of that particular agreement the the nature of the the nature of  excuse me of their activities the fact that those personnel had particular authorities for us to direct policies and procedures they had with already over day to day operations of that particular those particular sorts of activities years between feldman the leader on the tradition on one hand and chang and then on the other hand simon and and why i think that the point of rico is to have an enterprise that has a structure separate ability to conduct other kinds of business activities i think perhaps in simon and walk the court was suggesting that there was something a little bit too broad and that those corporations didn't really have a participation asked fact they weren't really participating in the rico conduct in any kind of meaningful related for example in time you're talking about sixteen hundred potential defendants and there's nothing in that complaint or in the opinion all they simply accept credit cards on the basis of whoever comes for whatever vendors you know would like the separate card so it's not so much that there was no corporation or that the corporation  part of an enterprise and along with three individuals and the court said no the corporation wasn't even sued it wasn't even a part of that enterprise really in any kind of meaningful sense other than that it was still alleged here we're talking about a different  the original cases the feldman linder standards it's also sufficient under the simon and walk standards and we would meet that under either case it's only under this this aberration of the substructure requirement which  mean let me raise two different points about that because the fun of sort of raise two issues within the mind the context one is seeing azure that's what they put their primary focus on and their argument on c after we don't believe to be appropriate to answer can be the general second question that they've raised and i think this goes a little bit more to your concern such pleasure is that the issue of particularity of the remaining part rather than the sea answer microsoft doesn't if we were to find that there's not quite enough here and you were allowed to amend the very thing more you could add with respect to the fr concerns that the defendants have raised on the last of the police raise on that seem to revolve around the fact that we haven't said which particular customer service representative which particular what particular statements they've made i think we probably could a legend that in more with more detail with more particularity i don't believe that that's necessary i'm considering that our argument is that it is the corporation's a system to do so when it's the corporations action rather than this the one who list damages they count at the end of the day microsoft is the one who bills at the end of the day and who collects the money at the end of the day and then transfer of the kickback that at the end of the day it's an interval part we may be able to plead in more detail as to how this came about and as to what conduct they took they were very way or that this was happening for a considerable period of time and did not do anything to act immediately and so after the litigation was was brought and even then there are media lashins we believe too little and too late we can describe that probably further with more particularity the question of what happens i think that it does have an adverse time for argument unless the court has particular questions relating to best buy's arguments and positions and about half a mile from here the same plaintiffs who pressed this appeal represented by the same  lawyers are pursuing a class action on behalf of a similar class complaining about the same conduct in king county superior court and this appeal presents the question of whether that state law consumer protection claim can come into federal court and satisfy what this court has called the heart of the rico statute namely the enterprise reform because congress enacted rico to combat organized crime it was the manipulation of organize the weather is organized crime in the sense of you know the mafia that's a different question but but that's what the enterprise requirement is and we're not suggesting that the court adopt some new requirement all we're doing is saying the court should follow the that's alleged it has its own decision making structure and it's not racketeering and we're not asking the court to make any sort of new requirement as i say we're applying the course on precedent and we're not doing what the court the supreme court criticized in city and we're not asking the court to read in some requirement that isn't in the statute what we're doing is looking at the enterprise term which is in the statute and looking at this court's series of decisions starting with chang of whether the enterprise was sufficiently to stink from the defendant himself that was the real issue that was going on and felt when there were two individuals and seven corporations which were the enterprise the question was whether the enterprise was sufficiently distinct from the defendant himself the existence of corporations as part of the enterprise was cited as evidence of that but the notion that a single corporation being a participant in an enterprise is sufficient to provide a structure i think has been rejected by this court several times since feldman and i'm not sure feldman even stands for that proposition but in any event this court has said several times that that's not enough and if you think of what the rico statute is about it's really focused on an organized group of people with its own structure and the notion that just because part of the association in fact is stuff really a corporation that doesn't give the organization its own structure and that's why i think the courts have made clear since feldman that just be just the presence of a corporation isn't enough to satisfy the organizational the enterprise requirement that is at the heart of the statute in your view what would be enough to form an enterprise between two corporations if there were allegations of a separate decision making structure and what do you mean by a separate decision making structure of my question you know i don't know exactly there limited there is one limited imagination of what the corporations might give him an imaginary one or two because i want to know what you're going about well let's say there are that the two of them actually set up a separate entity here is the group of people who are going to decide all the issues relating to joint marketing including what the best buy employees actually say support of the agreement and by the way that is all this alleged in this complaint look at the act of allegation this complaint think it's thirty four agreement and acts that's the only thing that's alleged as the enterprise in this case so if all that you money wandering and drug transactions they would need to have something else that was running over that that would be that would be convenient for your theory if they had a separate entity but i'm giving like half of them which they don't have a separate entity if they don't  gratian is running with them and operations that have simply agreed to do the money laundering between the two of them then and then charging with money laundering charges with drug running charging with fraud but it's not a rico  and that is what cheney has said clearly not enough agreement and acts not enough and yes there could be more discovery they could find out a whole lot more but the question is when they decide to come bring their case into federal court have they alleged what this court has told them to allege starting in chain ten years ago and the answer on this complaint is clearly not and not only do they not allege a structure they don't allege any structure for the distribution of proceeds they say they do but in fact with the alleges an agreement they say microsoft has best buy gets a flat fee on a percentage of each monthly subscription that's an agreement it doesn't need any ongoing structure it doesn't present any of the issues of a to constitute an enterprise and you know they have some cases that read well like the dually case that they cited in their reply brief on that subject but they omitted for example in the case and that was price by majority vote in all members of vida by that decision and that is just a structure there is an organization that's what they haven't alleged in this case even though chang made clear that that is what a rico enterprise the standard of did they actually make specific allegations of microsoft's role in the deception and the answer to that is clearly they did not all they say is microsoft di and if you look at the allegations that include microsoft's role in the decision they don't relate to the specific misrepresentations of the paragraph that relates to specific misrepresentations it's the one that your honor cited that's the one that's in the alternative either they jointly formulated it jointly implemented it or they had knowledge and approved and what's behind the knowledge and approval as counsel so that both below and here is that people came to microsoft afterwards the allegation is contacting microsoft is how it's alleged in the complaint paragraph seventeen i believe but a complaint first of all a contact isn't a complaint complaint isn't an allegation of fraud could be mistake dissatisfaction and even if the complaints were of allegations of fraud that doesn't mean they're valid or that microsoft determined them to be valid and that's the only real allegation here what microsoft supposedly knew or did as it relates to knowledge of this actual deception under the plane of standard as long as there is some scheme that seems reasonably calculated to defraud they could name pretty much  and they just don't know that it's wrong if it in fact turns out to be wrong i would like to spend a couple of minutes i see my time is running short on this question of leave to amend because i think that that the first record hasn't been treated argument we're making here i think it's forty five exactly the same argument we made here and they amended their complaint and all the allegations that they're talking about now as justification for this deficiency  complaint in response to our specific motion on these very issues then the case gets in front of judge peckman and she says i'm giving you each thirty minutes to argue and she allowed a small to go over so you cannot allege that at this point but that's that's what he says but if we can allege that referring to what he just talked about well i think he's the court has given him the opportunity the court unquestionably this is what i'm concerned about what structure of the sides contract itself can you point to and he says essentially here's why i can't point to anything else but i got nothing i have nothing else to respond to the court then says to him at the end what else would you like to argue to me there's no further argument on this it's only after the district court begins to say ok i'm thinking of this mission and again all this is going to fight for a long time and we've seen this in various other circuits they've got standing orders requiring particularities pleading the precise problem gave this list of things that are supposed to be in the complaint and because they weren't in the complaint the court just missed them to stall for asking is that the court chief that jurisprudence and under that you're  marketing agreement and the activities that they conducted that we left it decision making process that was a joint decision making process again maybe we didn't used to work consensus but we did use joint the word jointly made and that was appropriate but even in the event that we needed to we could certainly make those allegations a little more clear as i described earlier that we could discuss the types of personnel that were involved in these types of meetings in the nature of times in which they occurred or regular already in which they occurred a claim will probably survive but that seems to be the tail wagging the dog made you want to bring the state cause of action down in state court in washington we agreed to do that collectively we voluntarily dismissed the cause of action with the co remanded to allow us to amend the complaint yes if you have additional information from that discovery and that additional information also includes the fact that microsoft was well aware of problem early on had huge volumes of complaints and he was well aware that accounts for being activated without the authorization of consent of the consumers now he could have done something about that involved the ponzi scheme so we believe that that would still be good law council also raised the concern about mining b