pendants implementation of a discriminatory pricing scheme aimed to discourage solar energy use by consumers in arizona eliminate competition and maintain its existing monopoly power and this a court dismissed plaintiff's claims on several grounds which i now urge this panel to reverse given time constraints and wish you would like me to address a particular issue as are many in this case i'd like to focus my argument on three issues the cruel of claims whether arizona's notice of claim statute should have been apply when it directly conflicts with federal procedural law and whether there was a any type of improper attack on defendants rate making procedures either do the filed rate doctrine or for failure to comply with the arizona statute those are issues on defendant this counter claim or a bucket of cross if you excuse me it is that is the government going to fense ok got it it was moving to the st issue the district court heard in holding the plaintiffs federal equal protection claims and state claims were untimely determining that those claims accrued when playing when the defendant and adopted the discriminatory race an issue in two thousand and fifteen as opposed to when they were actually applied to the plaintiffs after they acquired their solar energy systems and  gan being charged the higher rates at issue in later years causing them actual injury the court's holding was in direct conflict with th circuit precedent and most recently described in the flint case as well as s versus kelly in the bird case cited in flint the cruel case articulated in those decisions makes clear that a cause of action accrues when a statute is actually enforced and applied against a particular point of and statute was person acted the court rejected those arguments indicating that before the statute was actually applied to the particular point of there could be no injury or cruel the court recognized that it would be a logical and we  to make someone challenge your op within two years of an act meant before it was ever applied to them and they were injured as they would lack standing to challenge yet here have played its couldn't have brought their claims in two thousand and fifteen when the rates were initially adopted by the defendant they didn't even have the solar energy systems at that time and hadn't been charged with discriminatory rates at issue causing any type of injury had they tried at that time accord most certainly would have determined that they would have lack standing under spokeo having incurred no concrete injury in fact additionally the continuing violation doctrine as recently interpreted in the flint decision applies here that case makes clear that when there's a systematic policy or practice of discrimination that operates in part within the limitations period a system that the claim continues to accrue list question and you've got a few more arguments to make before you come to the end of your time you may wish to move on moving to the next issue regarding whether or not the court properly the direct conflict between arizona's notice of claim statute in federal rule of civil procedure twenty three when a conflict exists as the conflict i don't get a conflict here could not be clear federal law and rule twenty three as confirmed in the th circuit's chen case and the us supreme court decision in campbell you are a pretext class representatives presenting class claims from pick up attempts that would move their individual coins and their standing before they have a fair opportunity to move for classification the arizona statute in contrast mandates the exact opposite it requires that a representative plaintiff in this case present an individual pick control over their fiduciary duty to the class and their ability to maintain a class action but anyone can have a claim against the state and city they have to go through this process of presenting up to the state before they can go to court in this situation and is interpreted grow case determine rule twenty three dollars permits all class actions that meet its requirement and the state cannot limit that permission by structuring one part of that statute to track rule twenty three dollars and enacting another part perfect a claim under state law by presenting their claim to the agency and the agency if it has some offer to pay them you can then have that all class go to federal court and file a class action but what you are seeking to do have has a right to bring those claims and demonstrated that they satisfy all the requirements of rule twenty three as a same as a represent as a single representative action  well type of additional requirements are exactly what the court there said a state cannot impose you could be limiting your class action in that situation to not there would be no absent class members it would be pursue their claims but it also let me understand the way the state statute works let's say that the plaintiff indicating that he or she intends to bring a class action files under knows a claim and  may or may not have but that's complies with as a very specific ok this was this would satisfy me the state comes to the entity comes back and says ok here's your money are they required to take it or can they say ok and i thank you very much and i'm bringing a class action on behalf of a lot of people and i view my responsibility to the rest of the class has not yet certified as such they are not going to take it is that is does the entity get to say i'm sorry you have to take it and your suit has to be dismissed i believe that's how the how the statute works your honor and how it was interpreted in the point case that the representative played of loses all control over their ability to maintain a to do is say yes we will pay this amount and as you know class actions in general the all with very small amounts relatively speaking it's one person with a small claim who tries to band together  to pick off that class representative and we've somewhat open to you to challenge is there anything in the wording of rule twenty three that conflicts or is it merely sort of spirit or the practical representative present typical claims and that they be adequate and there's a number of cases that they are a class representative who's using the threat of a class device to try to pain a individual of not included in their notice letter are all things that would have been used as to establish that the point was it adequate at that book claims and no longer had any standing the only represent information the court found was that there was an improper to present in a rule twenty three dollars case the plaintiff here attempted to balance the two laws and instead of presenting an individual  demand presented a class demand with a common formula something that didn't treat them in any special way they try to uphold their fiduciary duties to the class white boys would be if you want to turn he sees it's numerous cases find the class now and we will give you a chance to respond thank you your honor i  it your honors and may please the court matthew man over the united states i will address two issues st and predominantly antitrust injury and nd and briefly the state action doctrine the plaintiffs have properly alleged antitrust injury as the supreme court has stated the express laws are a consumer welfare prescription and under this court's press precedent consumers are the presumptively proper high prices on solar customers amounted to exclusionary penalties while on the other hand it found that plaintiffs consumer victims of that scheme and adequately alleged antitrust injury antitrust injury is injury  maintain its electricity of monopoly when plaintiffs injury is the very means of exclusion that satisfies causation defendant central argument because ation is that point of did not suffer antitrust a motion to dismiss psychiatrists were alleged to conspire with blue cross to exclude clinical psychologist by denying subscribers reimbursement the supreme court found that point of consumers who saw those clinical to me by the clerk about whether i wanted to ask for a bottle time and i assumed as an amicus i'm not permitted i just wanted to confirm that you can every bottle time if you like i don't think you ratting him now ok thanks  me i'm nicer than the clerk you we lost you but we were hearing an argument about what constitutes compensable and trust injury to plaintiffs when the there's a slight sort of mismatch between cause and effect ok so if you can back up and kind of run fair enough and i your honour's and made it please the court matthew mandel berg for the united states i will address two issues st and predominantly antitrust injury and nd and briefly the state a the plaintiffs have properly alleged antitrust injury as the supreme court has stated the antitrust laws are consumer welfare prescription and under this court's precedent consumers are the presumptively proper antitrust cla solar competitors in s or peace efforts to maintain its electricity and monopoly one point this injury is the very means of exclusion that satisfies causation dependent central argument on causation is that plainness did not suffer antitrust injury because their injury does not stem from the anti competitive the fact only the anti competitive cause the supreme court's decision in blue cross the virginia view mccready defeats this arguments in reimbursed successfully played antitrust injury because their injury was inextricably intertwined with the exclusionary act in fact it was the very means of exclusion like mcraven a plaintive consumers here face distinction for penalty is the very means of exclusion and state action the district court correctly found that s r p is defense fails arizona has chosen a policy in favor of substantial competition and electricity markets arizona or by statute forty das to a to b says it is the public policy of this state that a competitive market shelled zest in the sale of electric generation s given that policy and the lack of any other state law that displaces competition in the way competition was hard to hear as r p cannot establish the clear articulation requirement of the state action doctrine hospitals to make anti competitive acquisitions the same principle applies here s r p may have authority to set its own rates but that does not authorize a survey to set anti competitive rates in the form of penalties on consumers who use it solar rival the district i'd like to reserve two minutes for a bottle just on our cross appeal is yours i'd like to begin with what i submit is the simplest basis for formants which is that every one of plane just claims is an impermissible collateral and twelve s and the district court the rejecting this argument didn't cite those provisions either now it is do say that it doesn't make sense to bar their claims under the statutes because the statutes require that challenges to a district rate making be to say they had no incentive to challenge the each twenty seven dollars rate until years after the fact that is just a plea for a court made equitable exception to a jurisdiction stripping provision of say the authority for the proposition that courts can create such that is that courts can assert jurisdiction where the legislature has said there is none and even if courts could do that your honour's arizona's short time limit makes eminent sense because it gives utilities and their millions of customers finality and thus the ability regarding race played is also argue that under arizona law divestiture of jurisdiction must be clear but the statutory line is quite clear in fact as our briefing says it is very similar to really indistinguishable from great doctrine it hit every other case of which i'm aware in which we've applied up there is some entity that is reviewing the rates you know that are filed  here or as i understand that you file the rates with yourself that d there's nobody else overseeing those rates so why in this circumstance should we think that the doctrine applies so judge miller you're right i'm not aware of a case that  dresses this situation either way and this court when it has encountered novel situations under the filed rate doctrine has looked to the underlying rationales for the doctrine and those rationales all explain is why we submit the doctor's fully a political here so this court as explained it to core rationales for the doctrine of our st court should respect a legislature's choice of what entity will be responsible for setting rates and nd the court should recognize that institutionally they have limited experience or expertise in this area and should leave rate making to those who do have that experience and expertise now those rationales show why the docs and should apply here the arizona legislature chose the district to make rate setting decisions and the district has the requisite fact even if you set aside the notion of the district or reviewing the rates submitted by the district management if you set those aside there are at least three forms of regulation so st there are the lawsuits that are authorized by the state statutes i  rd there's regulation in the form of elections of the district court so you've got three of also so members two dollars and three dollars are really regulation by the possibility of legislation and regulation by the possibility of rate of election anything like the sort of the sort of rate making supervision that allows one to be protected by the final rate doctrine that you're but that's getting back to my response to judge miller judge fletcher this court has made clear the rationales for the file rape doctrine are as i articulated not so much about protecting rape measures in fact they said they are it's about protecting rape makers who don't bring these type of lawsuits from unequal rates that is if certain  certain customers or race makers bring these type of lawsuits and succeed you're then going to have an equal rate making so the rationales that this court has identified actually align perfectly with applying the file rate doctor here and i would note that it is more analogous to the lawsuits here out of the state laws you can certainly go to congress you cannot vote out the st commissioners the way you can go down the you know i know i get that but i think i am i'm afraid i'm rather unkind to the position in the least implied budget miller's question that the protection of the founder it doctor and exists because some entity outside the entity charging the doctor has made the decisions some state governmental entity outside the unit making charging is making the decision here you are both setting the raid or making the charge that i just am i need to be persuaded and so far have not been that the file reduction protect you because you're not just setting the rate you're charging the rate so if you look at this court's decision in carlin it specifically said whether or not the agency charge this is carlin versus very american site an arborist whether or not the agency charged with reviewing certain rates or certain prices has actually done its job is irrelevant under the doctrine the question is just were the race if approved by the agency pursuant to statutory authority that's what carlin says that's almost a quote out of current question of the doctrine is simply whether the rates were proved by the agency pursuant to statutory authority not whether an agency did a sufficient job investigating those rates not whether it was looking to protect certain interests or protect certain customers file rate doctrine is about deference to a legislature's choice of who should be doing it and can be a federal lawsuit every time that a customer is dissatisfied with how a utility has set his or her rate and that's whether it's electricity water gas what have you that runs enormous disruption and uncertainty for millions of utility customers someone pays less so there will be almost always be someone unhappy about a rate making in place just don't explain why it makes sense to allow a federal lawsuit and the destruction that would follow every time that happens so i'll stop there that is our collateral attack argument and the court agrees with those points then it doesn't need to reach any other issue in the case but moving on a nd ground for the dismissal of plaintiff's antitrust claims and sorry if i could just as i think i made clear we had two separate collateral attack arguments the state claims are out of the state statutes those are barred whether or not the court agrees with the filed rate argument and converse the file rate is just on the federal claims a nd ground for the dismissal of the antitrust claims plaintiff failed to plausibly plead antitrust injury their injury flowed from what allegedly made the district's conduct if the district's conduct had been a lawful it would have been because of the alleged armed competition from solar energy suppliers that is the anti competitive effect that plaintiffs allege injury the plaintiffs say they saw was in higher electricity rates and that the injury did not flow from any harm to competition from solar energy suppliers whether solar competition went up down or stayed the same after each twenty seven dollars was adopted would be paying the exact same rate it didn't it didn't flood the harm didn't flow from the desired anti competitive effect but it flowed from the anti plaintiffs alleged an agreement to restrain trade in antitrust conspiracy and trust conspiracy is itself on lawful so when ms mccready claimed that her injury resulted from the alleged conspiracy she was alleging that her harm flowed from what made the conduct unlawful here by contrast and make a more direct your questions as most of the alleged conduct is not itself unlawful a single business raising its prices  violate section two of the sherman act the government itself says that explicitly at the top of page twenty three dollars of its amicus brief so if the conduct here had been a lawful and again the harm has to flow d from what made the conduct on lawful that's a long line of this court's from supreme court flowed from the pledge reduction in solar energy competition now as i mention this is a distinction that this court has already embraced specifically in american administering which we cite this court in that case was distinguishing brunswick the supreme court case the boeing case where the supreme court had found no antitrust injury and what this court said was that brunswick was different because in brunswick the alleged conduct itself was not unlawful again like here but the alleged conduct in american at management was like a mccree an agreement to restrain trade and this court said that's what i said that is itself unlawful and because of that that this court said there was antitrust injury because in all this quote it injury flows from that which makes unlawful g t e conduct the but here the alleged conduct is not unlawful so we're on the brunswick side of the line and plaintiffs don't really have any answer to brunswick nor did they even cite lucas engineering from this court which we cited for the same proposition yours i submit that what i just argued has to be the correct plaintiffs antitrust injury is wrong are their argument is wrong because even as a matter of st principles and their challenge fails because they never offer as i said any coherent explanation how they're paying a higher rate for electricity resulted from any diminution in solar competition what they say is that the adoption of the twenty seven rate caused to harms right hard to them paying higher rates arm to solar energy competition but they don't show or explain how the latter was caused we said that in our principle in response brief here and plaintiffs offered no response to the waiver argument in their response in reply brief like the next discussed point just equal protection claims starting with our argument that the claims are properly dismissed because they are implausible the key threshold point here is that rational basis review applies so i looked at him and i don't think the district court got to that difficult just threw him out on potential limitations or on my missing something or not missing something just lesser but we preserved below the argument that even if they were timely they were also implausible and so as we presented in our brief to the principal response brief to this court that provides an alternate ground for firm and if i may i'd like to start with that so as i said rational basis of your plies highly deferential and in fact especially deferential even as rational basis review goes because we're talking about economic regulation and regulatory line drawing so that the order here is the kind of decision that the supreme court has said is quote unquote virtually unreviewable that's f c c versus beach communications which we cite survive a motion to dismiss given that standard had to plausibly allege that there was no conceivable rational basis for the classification that they identified they did not do so and i want to explain why but st let me just note that plaintiffs say in their response in reply brief that our argument here in properly relies on documents that the district court declined to take judicial notice of that is that correct those documents incentives that the complaint says the district offered for customers to go solar but just never explain why that is not a conceived basis similarly for the non solar customers a rational basis or each twenty seven the district rates were not allocating fixed cost proportionally to solar and on solar customers in fact the complaint itself cites that basis now claim to say that these were not the district's real reasons but the real reasons don't matter under rational basis review what matters is whether these state plausible the equal protection violations and i would note the plaintiff's briefing on this issue relies almost entirely on cases preceding it barnstorm but of course those are the cases that govern here and they raise the twelve b six standard play just had to exclude obvious alternative explanations and they didn't quite as also say there couldn't have been a rational basis because each twenty seven dollars rate supposedly violates in one thousand nine hundred and ninety eight arizona law the supreme court has explicitly rejected the violation by alleging a violation state law and since their complaint does not negate obvious alternative explanations for the each one has equal protection claims are plausible my last point on equal protection yours if you look at the thirteen separate class to produce the credits they could get for electricity they returned to their utilities and it grandfathered in existing solar no thirteen of the many complaints so this court can certainly consider it enters i submit that that underscores that you had the option of each twenty seven rate was entirely ordinary and entirely rational step and it shows that it places equal protection claims and go forward that is opening the door to a flood of lawsuits challenging every rate setting decision by utility which as i why did you cross appeal because the judgment just wasn't what you got was a judgment dismissing all of the claims and you're not seeking to alter the district court's judgment right away it seems like your reversal that would allow the claims to go forward and so if we win on either state actually immunity which applies just you have to trust claims or the filed rate doctrine then the dismissal would have to be without prejudice student with prejudice if i c clearly authorized the conduct that is check allan's and that then what the supreme court has said that means is that the alleged edgy competitive facts are the ordinary or the foreseeable results of what the state has authorized here the state has authorized rate making and when the state requires as is the case here that the rates be quote unquote just and reasonable that was also the case in southern border carriers and the supreme court there said that's enough because as it explained in footnote twenty five dollars in the accompanying tax just and reasonable rates bear no discernible relationship that was the supreme court's phrase to race that would prevail in a perfectly competitive market so that alone is enough and plaintiffs never even respond to the just and reasonable point your honor that what they say and  utilities but the more salient point your honor this court has explained in length esther community hospital which we cite that what matters is the actual kind of that issue not a state's statements generally about competition and so on  state lancaster community hospitals pacifically says this if a state has made some statements or taken some action allowing competition and yet has carved something out that would be anticompetitive then state action immunity applies so even though th had asked the law to allow some competition it kept in place both the authorization for rate making and the requirement of just a reasonable rate which against other motor carriers dictates is clear articulation of the last point i'll make is what the nine hundred and ninety eight dollars statute that the point system of government rely on provided was for the introduction of competition once it was authorized by the arizona corporation commission and and i just allege in their complaint footnote nine the arizona corporation commission has not done so yet under this court's decision in california c n c that by itself demonstrates clear articulation and plain just never respond to california c n c they never here were not parties to the action or the proceedings and they didn't participate think were charged these rates at the time and the statute just those those provisions just don't apply  the critical part missing from mr valtrex argument which is there must be oversight by an independent agency these rates aren't file and there is no oversight by any independent agency which all cases require and karlen does not stand for that for the proposition that he referenced it or in the court in harlan went through an extensive analysis as to what the u s d a and agency was doing to provide oversight to these rates and compared to what the agency in the earlier gallo decision did and in indicated in some of the us they did one possess the authority must be federal oversight the whole doctrine hinges on that regarding his arguments and the most of the time regarding the equal part if i could just finish my one point the statute is in direct conflict and there the court the there the court drew a distinction between cases where plaintiffs benefited from less competition those are the brunswick line of cases versus the creative where they benefited the plaintiffs benefited from more competition and in this case like mccready and i'm like the brunswick line of cases so are consumers want and benefit from more competition on state action i want to address two points s r p is authority to set its own race does not authorize it to set its own rates anti competitive setting one's own race is fundamentally no different from any other seller in a compete a consumer can look to one or the other to meet its electricity ne if there are no further questions go ahead and any further question from the bench i think all of you for your very useful arguments in a very interesting case ellis vs salt river project central now submitted for decision and we are now on adjournment thank you very much