for the defendant of poland manufacturers of hikers or three minutes of time for my rebuttal very well so your honour's the only question in this case is whether the word direct in the end payer class definition whether it just means direct you know i really just like to make two points about the class notices and the releases which are just fundamentally incompatible with their argument that direct is actually an obelisk reference to some arcane legal fiction so what the awful place for them to look would be the class notices and it answers the question and no one certain terms it defines indirectly it says indirectly means you bought the vehicle replacement part from someone other than the manufacturer or the part that's our test and i think even maybe even more important is what the class notices don't say because the plaintiff theory is that you are there's an implied carve out where if you purchased from a retail subsidiary via a purely internal supply chain then your car out of the class it's hard even to say but if that were right there would have to be like a footnote or an asterisk or something in the class notice telling ordinary people not telling ordinary people that they ought to have to identify the subsidiary so that an ordinary person who got one of these parts installed at their local firestone they could know that hey i'm i need to ask more questions to figure out if i'm a class member or not and it's just not there and it's not there because it just doesn't matter i think the releases are also very powerfully in our favor that the releases are written really broadly and what they are so they release basically any claim that any class member could have or may have or possibly have other subject to express exceptions and really the key point here is that there is no th exception because that's what the plaintiffs are asking for they are asking for an additional exception basically saying that indirect purchasers nonetheless retain the ability to sue for damages under the federal any trust laws pursuant to an exception to the rules illinois brecht and it is just not there and i think there's through two things that are really really powerful about that one is your to have exceptions rights you don't just as ordinary careful principles you should not be reading a nine to one into the contract especially a sophisticated contract like this but i think another one is very powerful but the last exception is directed exactly the same subject a last exception that the th one says that indirect purchaser class members retain the ability to sue for damages under state law in states that follow the rule of illinois brick and the only thing that that can mean is that when an indirect purchaser class member invokes an exception to the rule of illinois brick so they can sue for damages in those states that the only way they can sue for damages in the states that they are still a class member otherwise that it is exceptions is completely redundant superfluous as does make any sense and it would make any sense why refers only to state law claims and also to federal law claims i think really those things like the combination of the ordinary meaning and the notices and then the releases are just fatal to the other side is position  think a big part of the plaintiff's argument here is a contention is that the term direct is is actually just like the atomic art i think for the reasons i was just discussing you honestly you don't need to get into that you can just you just take this as ordinary meaning ordinary contract interpretation and be done with it but even if you were to think about this as attorney or i think honestly we still with him because i think one way to think about that would be that it's incorporated in whatever the terms direct and indirect mean under american antitrust law and if that's what it does we when because apple versus paper the supreme court stated our rule that the absence of an intermediary is dispositive undisputed here that there's an intermediary and i think maybe the other way of thinking about it which the plaintiffs have been pressing is as maybe a little more like usage in the field the way he and trust lawyers speak and i think on that it would really be on the plaintiffs to come forward with evidence that that's the way the interest lawyers speak interrogation of ordinary usage and they haven't come close to making that show and they have to just record opinions in the last forty years that use the term direct the way they want to use it and i think we have basically everything else we have illinois brick itself the supreme court in kansas for his utility or this court in the jewish hospital case  treatises i mean the normal way that people talk about this in the field is to say that they are indirect purchasers and they're invoking an exception to the rule of illinois brecht so they can sue for damages but it's not a legal fiction right it's an exception to a rule of proximate  you can't move to enforce unless you have judgments and that's when we got our last one and basically at that point the motion to dismiss proceeding was already really far along we've been litigating that for a year and a half  and it was a completely independent free standing basis for knocking out the whole suit and all candor i think we thought we were going to win that we still think we were right and we will take it as a given for a person for purposes of this appeal that they have a cause of action for damages but basically a jurisdiction there i think maybe she was getting out wanted us given given notice in advance of what we were going to do if we lost the motion to dismiss them but i think in any event it really just doesn't shed any light on the meaning of the word direct in the definition which is really the key point right this time and whatever it is like the meaning of direct was set when we entered into the agreement well in advance the settlement and i think maybe one critical point here is  settlement they didn't say hey your releases you only have eight releases would you please out a th i would like to preserve my my ability to sue for damages under federal law they didn't come forward and do that they didn't opt out they didn't sue under state law and so i think just under very ordinary principles of class litigation or will twenty three other claims were just been released and that's the end of it was there any mention of illinois at risk in the litigation  one of the oddities here is that this was a case where of course there are actual direct purchasers right companies like honda nissan toyota and none of them came forward right for the entire duration of the limitations period this is in striking contrast to twenty nine other cases in this empty all or actual direct purchasers came forward and brought class actions of teams of very significant recoveries but for these little rubber parts that we're talking about here they didn't do it and ever came forward and instead what happened is that the plaintiffs here him up with this like admittedly very creative theory for why they can rely on a legal fiction to pull themselves out of the st class of people who look just like them and instead stand in the shoes of these companies that they don't even remotely resemble and so it's very unusual posture of the case but i think really the most straightforward way out of this is just direct means direct it purchased through an intermediary there if there are the claims have been released comments from counsel what we heard was what he refers to as the actual direct purchasers didn't come forward that is exactly what we're looking at here a defendant's don't accept the court's ruling on their prior motion to dismiss we represent the actual direct purchasers our clients directly purchased parts anti by gratian rubber parts from firestone dealerships and those firestone dealerships says we elect clearly were owned or controlled in this case actually owned by an entity that was owned by rich don't a conspirator in this price fixing conspiracy we are direct purchasers they just don't like that we are tricked purchasers and so they filed this motion but let's be clear they didn't think that they were getting a release of the direct claims initially it was a surprise to everybody this was all an afterthought and it doesn't work let me back up though and say a little bit about the case this defect before you do are you it are you in fact the director purchaser or are you treated for purposes of standing as if you were the directors but we are a direct purchaser well you didn't purchase standing purposes we will treat such a person or as such an entity as if they were a direct purchaser but i don't i don't say see it as holding that you are a direct purchas circuit is we directly purchased from an entity that was part of the conspiracy no in this case they were it part of the conspiracy because they were owned or controlled by the actual  set up subsidiaries and sell through the subsidiaries because there's no federal liability and that's why when you purchased directly again we didn't buy from some rd party we didn't purchase from a a a an independent party that had purchased these parts that would make us in direct we purchased directly from the company it happens the company had the subsidiaries but it was from the company that was courts refer to these as indirect purchasers purchasing it with an exception others refer to them is deemed direct and others just call them direct purchasers there's a lot of different nomenclature fort at the nomenclature doesn't drive the outcome and  i want to point out that it isn't the outcome though for standing purposes of bringing in and i trust action and i mean that illinois brick says that indirect purchases as a general rule cannot suit however there is this one exception we recognize in this footnote which would allow them standing to assume but the issue here is the the contract the settlement agreement that under michigan law does interact purchaser mean what we think it actually does mean in direct as indirect mean indirect as opposed to  stand in terms i mean what well what am i missing here well i think the st thing and i would never suggest around it that you missed it is don't let the the fur the the way we look at it differently let's start with this this case is a rose from an empty l is the court knows the judge for ten has been handling head and when i should say for several years before her retirement she presided over the settlement the settlement went through all of the rule twenty three dollars requirements all the detail requirements for the settlement could be approved in the final was after she followed all those rules she retained jurisdiction and she interpreted the settlement agreements there are exclusions one of the exclusions a spur person who purchased directly and another exclusion is any claims made by direct purchasers of  didn't rubber parts that's what our cases our case is the class of direct purchasers that's what our classes in it there's never been a question about that there was never an issue until after they lost on the motion to dismiss and after this court refused to review that determination in the reason that's significant is that they filed multiple briefs and not only brief but their answers that didn't even  his affirmative defenses release because they didn't think there was a release this was a gotcha moment somebody was sitting in their law office in new york late at night one day it's oh wait a minute maybe we could say this certainly when notify the directors to place it after they got reach the settlement they didn't tell the court and i think the court asked why was it relevant to judge tenney judge between any has been handling this case this case this this litigation goes back to two thousand and sixteen and it's been in judge between and he's been handling it through handle it throughout that period nobody came forward after they reached settlements and counsel said well they couldn't really know until november two thousand and eighteen which why bridgestone didn't give notice no that's not right the last of the defendants might settle late in two thousand and eighteen but the other settlement agreements and we've got all the dates set forth in a briefing but the other settlements were finalized long before that and they never came forward to say and never came forward to say it because these are direct purchaser claims are the claims of direct purchase people who purchased directly from the corporation or its subsidiary like that why did they have to tell your client about the settlement what what wh duty to tell your i know it's it it goes to their own interpretation of their settlement they were done if they say if the settlement settlement ended the claims then they should walk away from the litigation so you have their own interpretation of the case they knew they had to settle these claims if they thought they'd settled the claims they would have notified the court claims are done we don't have to keep coming back we don't have to deal with discovery we don't have to deal with this case we're done because we've settled but they didn't they kept litigating they kept litigating on these other theories because they didn't think they'd settled out the claims that's why it's relevant the relevance these people knew just we all knew that the end payer claims were separate from the direct purchaser plate claims it's a whole different world it's a whole different set of claims those we had federal claims litigate it's state law claims when you get in state court you know they say over and over again that eighty million dollars eighty million dollars eighty million dollars should buy them peace eighty million dollars should buy them into litigation in the even say it one point that all of the class representatives in this case all of the class representatives in fact purchased parts from firestone stores could i and what bridgestone didn't terms of filing  global motion that is well all the books all the plaintiffs would have been knocked out because the all of the class representatives purchased from a retail store all of the class representatives did so if you if you get out the class representatives you just you get you get out the class it would assert it serves the same purpose yeah yeah i'm not sure i'm just i seems like you're both going back to your gotcha point it seems like each of your kind of gotcha on the other side so i'm not sure that really solves the question here sorry to distract you i would use the no no that doesn't distract me i was thinking about i'm thinking about what with what the court is indicating the the relevance of our arguments not certainly they have a right to litigate in any order that they want to but if this was true if it were true that they started to release the claims they don't have to go through the complicated issues involved in the motion to dismiss all they had to do was say cases over  the the you've released your claims releases very simple but we didn't release our claims because we are direct purchasers we're not in direct purchasers they suggest that it's a it's just a  dictionary definition of direct or indirect well that you go to the dictionary it's not going to it doesn't talk about sales and purchases antitrust law does antitrust cases do in an antitrust law we all know that these are direct purchasers i would say this if you look at the actual definition their definition refers to the purchases from the manufacturer well that's not defined either can't manufacturers include why wouldn't a purchase from the manufacturer include the purchase from the manufacturer subsidiaries i would think it would and there's no reason to doubt that it would have in this case in the end judge to take any hit to it had to wrestle with this in evaluate this judge tanny evaluated she found these are direct purchasers now she used the word deemed direct the phrase that they would deem direct they are deemed direct purchasers but for purposes of the settlement agreement why aren't they also deemed directed some agreement in the same  so the in the end what we really hear today is that defendants don't like the outcome on the motion to dismiss and we understood that we understand that they've got this other creative theory but every aspect of this theory really does revisit the law of the case which was already determined by the court and was known at the time of the settlement agreement when they reached when the interest in some of the settlement agreements i see that my time is up all right thank you mr take any further questions judge batchelder judge bush well all right u nderstanding there is three minutes of rebuttal trip you know just a few quick points well i think well you know we're taking it as a given i think it is trash griffin's questions picked up on we're taking it as a given that they could have standing to sue for damages you know would have it individuals under the any trust clause or the ownership control exception the only question here is one of construction it's what do you make of term deed indirect or does it just say indirect it just says indirect all right judge but that you qualified it deemed indirect which means to me she's that's that's a legal fiction and for purposes of standing she's going to deem them as if they were direct purchasers but that a settlement agreement if it doesn't use that same term it's i think that's important i mean that's exactly our position and i think the notices and the releases completely confirm it i mean i haven't heard anything from the other side talking about ordinary meaning they admit that they did not actually purchase from the manufacturers no response on the notices no responses on their releases i think that's really all you need to know to decide the case i guess one last point just taken a step back or should be really cautious before reliant on a legal fiction to pull people out of a class definition because if people can do this this is going to really undercut the predictability the stability the finality of settlement agreements that are so important to everybody in this entire seemed to to supplant the defendants to the courts because if defendants can't know what they're getting when they enter into an agreement because a smart lawyer is going to come along and come up with a creative theory for why there's some legal fiction that all their clients out of the class and then defense are never going to be very hesitant to enter into these settlements because you could take a longer and harder and i think honestly their press is openly going to all that it gives you less money and ordinary people's pockets like i don't think that is good for anybody involved and i think really the right way this was just the way the judge for one has been suggesting which is just to look at this as an ordinary question construction contracts as direct and indirect but that's basically all you need to know so we're asking the court to reverse