actually start on this case let me state what i hope is obvious but just in case i'll say it anyway i suspect everybody in the room was aware of the next several cases related to each other and i don't know whether it's good fortune or bad in our party years that they're all given to us together but they have been so i'll make two observations or requests first we're going to go through the cases as they are on the calendar to the extent that arguments have been covered before you're free to acknowledge the fact that we were sitting here twenty minutes before and heard the same argument expressed by somebody else you don't have to repeat it all over again we welcome your individual perspectives and additional observations but we don't have to give the same argument in each case second because of the collection of cases it's kind of important for us to try to keep the players straight and so if if when you start your argument make it very clear to us who you're there for and what the particulars of your case are that will help us focus as we hear the arguments in sequence so with that we'll start with the  addressing these prevention father a doctor issues but as the court noted there is going to be quite some overlap between the cases because they address primarily the same issues similar allegations alleged wrongful right and who's wrong sure the people who brought the cases think they're right and we on the other side think they're wrong but what we're talking about here is only were the appropriate form is to have these things hurt that's what we're talking about and there really are two choices there is having these heard at fir the federal energy regulatory commission or in every state and federal court in the country those are the options as well is that really an option for gallo many of gallons purchases are retail purchase large consumers in the wholesale markets and they have people like you or me in that case it was very grogan who bought gas by turning on the temp to have to make some tea at the stove in each case they were fairly termed retail customers has the right to buy and sell for resale in some respects and they're experts and land and do take into account the gas that they sold back some of the other plants you hear resi are pacific bought and sold half a billion dollars of gas resale so they're kind of hybrids is what they are but the distinction whether retail or wholesale doesn't matter in this case anymore that matter of the ninth circuit in canada stass law and it doesn't matter because the long line of supreme court cases which have addressed the the only time that i have seen you probably know more about it than i think is that they did take some action against enron but ordinarily and i don't think they first twen tell you why two two reasons the first is that what's being talked about in this particular case and frankly all the cases is interstate transportation of natural gas and the claims in this case are about the allegedly inflated interstate transportation costs of actual gas even if it's used for a direct and sale like the sale to gallo and to the extent that people are complaining about the inflated transportation component of a natural gas rate it doesn't matter whether it's an  somebody who's regulated it's no longer a first sale then you have to be concerned about and fork has authority over downstream transactions because of the impact they can have with regard to what for can regulate but that really doesn't answer the decision of elizabeth town affirming marketplace rate authority and each of those cases only a few years ago the courts found that the natural gas act was substantially it did a call to the federal power act and on that basis allowed the fall rate doctrine to apply reports to the publishing industry is done appropriately again something that is in power exclusively by for it to look at and then once they decide whether the conduct was correct they will decide whether the rates in the wholesale markets were right but each  here in gallo in all the cases you're hearing what they're asking for is a jury to first decide what the conduct was in the natural gas you know state and seal markets and what was appropriate and then to come up with a hypothetical rate for natural gas that would have existed in these blanket marketing certificates that each of the gas companies have was always a rule that required them to report fairly and also to trade and transport gas fairly i understood that the indices were comprised of not only information from j issue whether or not they had transactional authority that is where they govern a week of transaction in each case in this case in all the cases you hear people are not asking the courts or jury to determine what was appropriate for a price in a retail struction where where there's not jurisdiction and that's the footnote the struck a lot of attention and comment i'm not sure the court says that it's hands off and those other actually ronnell well i think the footnotes are if you read them together for five or fourteen and you read them with the recitation to the first quarter's don't see it at all it's not talking about a lack of first jurisdiction in those circumstances the file rate doctor wouldn't apply not because no jurisdiction but because the contract order market as separate transactions oftentimes they are sometimes like we talked about here the combination deals where it's a transaction and you resell part of the gas back so in that case it's partly a direct sales and use part of a sale for or both the conduct and these rates and you can skip over the fact that in this particular case and all the cases they are truly coming up with a first time with a hypothetical rate for natural gas that they claim would have existed in these border markets and we please the court my name is steve williams i'm here today with barbara lines the privilege today of addressing this court on behalf of the engine gallo one area as you had requested at the outset to put this in cont recognize below the line of the natural gas act is clear and complete it could sharply and cleanly between sales for resell and direct sales for this bright line is clearly no because earth does not have any jurisdiction over retail prices charged in natural gas transactions and in fact we can go to the words of first tried to act in two thousand and two to impose some further regulations in the field of natural gas and you see in the record at pages five one thousand and five twenty that the response of the appellant then  to quote address the ramifications of implementing a two tier gas market where a limited number of gas sellers are regulated while the vast remainder are not in a footnote in that same pleading fall of a bath of the appellant they recognise that quote first sales of gas reduce regulated by statute long ago and the commission's residual regulatory power over gas  is now limited to the commission's sterols for resale or thorough similarly ferg head quote to acknowledge that the commission has no statutory power to set retroactive rates under section four of the natural gas  clearly has jurisdiction but doesn't exercise it perhaps because it doesn't have authority for a directive refines kind of working my way backwards through the arguments to try to sort out why it is in and what areas first has some authority and where it doesn't and i guess what i'm getting back to it seems to me that the two arguments i hear from from just mr vogel and from the gas companies generally are  know what i'll call the upstream authority which stanislaw us may speak to as much as anything that is because the transaction has gone through or resembles a wholesale transaction there is  there limitation of what courts can do with regard to the ultimate purchaser transaction even though for itself might not speak directly to it or the alternative argument that says you know does have authority in this neighborhood because it's got generalized authority i'll reference the electricity cases there that argument for try that argument bonneville power and our court said no it can't do that because you run into the wall of the specific provisions within the power  says you can't reach the governmental utilities there's not really an equivalent of that here for cason tried to assert in the natural gas time text that i'm aware of that it has authority to get to transactions that don't appear to be within its jurisdiction but possibly it could if it if elected to do that in electricity it probably could try to do that natural gas and see what kind of walls it runs into there so those are the things i hear from the gas companies that say that even if earth doesn't get to this particular transaction on the face of natural gas act this is within the realm of foot territory that's exclusive to the regulatory body in court so you can't come here so that's the problem is i understand what your perspective on that i think you've stated quite clearly what the arguments purchases the issue in the stanislaus case was the fact that you had actual rates in tariffs filed subject to specific regulatory review by the agencies it is a direct fall of rate case we don't have any fall of rates here there's no doubt about that but second i think the bar the power case and for has not made the argument your honor suggested that well gee we can somehow exercise other powers to broaden the scope of jurisdiction congress gave us but that's certainly exactly what the appellant is arguing here that somewhere out there is something for his jurisdictional and even if on the record we have after years of discovery we were unable to find anything to show the court below or this court that in fact anything about gallus damage claims implicates any rate or tariff of fur or any transactions subject for jurisdiction somewhere out there it exists but the same problem would confront that argument as the court ruled in the bonneville case which is the role of this court is to read the statute as congress wrote bonneville power we were dealing with something that included expressed provisions in terms of who's reached and who's not and in terms of where the we're going to reach into for refunds and put it that way here you're talking about a jurisdiction of asked to and did a search for any of the kind that it asserted in the decision that was overturned in bonneville power then at least i can understand the thread that says it's authority over natural gas transactions generally give it a thought gives it authority to speak to transactions which otherwise might not be within its jurisdiction i mean if earth would come out with something that spoke to the consumer transaction bonneville power may w against it but doesn't really bar that possibility and it's hard for us because the instructions we get from the supreme court is if it's their territory we stay out of it so we've got to figure out not only what territory for it is staked out but what territory it jurisdiction ends against the backdrop of not finding implied repeals of the anti trust laws and not finding implied preemption where congress is intent to do so it's not clear and explicit this is not even an instance where it's  restrictions that one day or something else we tell cells are outside for jurisdiction first sales are outside for jurisdiction sells the canadian gas which are clearly what we're talking about here are outside of state so nath that in fact you've got transactions that that never come within for authority because they were first sales i think on the record we do in that what we have is a canadian producer of natural gas we have a system through which contain a natural gas and california market and we have in the record and i apologize because i can't put my finger on that same argument below to the appellant you need to show that these are gas acquired by gallo did not come through what i'll call jurisdiction transactions while then at least some of your case might still be alive if that's where the line gets strong  lease for jurisdictional transactions because well there's there's your honor respectfully several problems with that argument i heard the assertions by counsel which suggested that everything in the indexes is a regulated wholesale rate that arguments in the briefs but seriously if you look at the briefs you don't ever see any evidence cited for that in the record before the court below in the record before this court and i apologize not in the excerpts is the actual the document that we're all talking about here to the document that the evidence we develop shows this appellant falsified information and lied to that index and reported that information is true and that caused the prices that gallopin to be increased and if you look at that document and i can tell the court where in the record below to find that document you see as i think the court may have mentioned they collect information from end users and publish it that's not a fur regulated proved rate that simply a price that an end user paid in a retail natural gas transaction that's not within diction moreover the well meaning transactions listed in there are listed as prices has never reviewed or approved any rate published in any of these indexes and there's no evidence in this record to suggest that that in fact is the case and you stand happened that's certainly is not within the jurisdiction that congress gave to for just to clarify when one other point that i wasn't clear from that document was gallows the price g argument that maybe geller was using this for resale but i don't think that is really sincerely felt overwhelmingly the record is that all the guests gallop purchased with made tiny exceptions was used to fire those plants in the dust and where the bottles were made  i want to step back and also put in perspective the bright line between retail and wholesale there's no doubt for it has no jurisdiction there there's no question here that there's no rate or tariff that was ever filed be the same and i think that's clearly not so some of the differences have been addressed previously in the course of argument but as the court stated them banville it was of no small significance there that different statutes are at issue the same thing applies here and if you go to the electricity cases in those instances where the filed rate doctrine has been applied in each of those instances there was a pre is it different that for made a general determination that natural gas market that no entity had market power why did it need to make a specific transaction by transaction or player by player i don't think it's a specific transactions a specific finding before the transaction that that company last market power but more importantly it's the post transaction finding that the documents to those transactions have been filed with ferk and for his reviewing and evaluating those transactions in in the california be first decision that was critical to this court's determination that firk was in fact exercising power in a manner that was permissible in a manner that actually was a regulation a matter that would actually provide basis to take it outside of this court's power is their authority to support the proposition that the filed rate doctrine stops and part of the problem with all of the cases in the current day is that utility pricing simply changed the torah market rate environment and the fiction of of the first system still stays in place with accepted the filed rate doctrine even in instances where nothing is filed and certainly there's not reviewing and a calculation by for that this is the just and reasonable rate and yet it's also not much doubt that the doctrine lives on  it was critical in this court's analysis there as i read the decision that firk represented to this court that it was not relying solely on approval of market forces alone but rather put the crucial difference in the present circumstances was the dual requirement of an accent the finding of the absence of market power and sufficient post approval reporting requirements that doesn't exist and i guess what i'm trying to is is there a case yet that we're somebodies walk around to the other side and said you know we don't have that here and so as a result the doctrine doesn't apply any longer or as i think you've got in front of us here  i think that's what's in front of us here certainly in telecommunications i think the courts got in there and gavel judge birds and said if there's no right filing then there's no fall rate and there can be no question that logically makes sense the whole purpose of the fall great doctrine as it developed was to protect consumers from being taken advantage of by parties who could exercise of their market power in a way that would cause those rate tariff actually filed and approved by first it would be i would submit against all the principles by which preemption is measured all the principles by which the fall of rate doctrine is measured and the princip principles that judge is she quoted below concerning whether or not we can lightly fund repeal of antitrust laws by implication from regulatory statutes those things that we do violence to those things that we do violence to the differentiation between the balance of power between the federal government and the state sovereigns and the balance of power between the executive and the judiciary to say where there's no right or tariff approved by for where there's no pre and post review by for as this court said in california there's really no regulation at all in that circumstance and my time is coming to a close but what i'd like to do  what it would be looking for from the parties in order to determine whether as judges she stated does gallo's claim for damages implicate any weight or tariff approved by fir or anything within for exclusive jurisdiction years of discovery institute certainly the appellant has all of its documents and everything available to it to make that showing and on the record after all that it's the meeting nothing to show any jurisdiction by for over any of the conduct which gallo claims gives rise to its price inflation damages there was no showing ever me that anything about gallus damage claims implicates the jurisdiction for in any way whatsoever so my time has come to a close i think the court very much we thank you we thank both council in this case for the arguments and we'll we'll see you in five minutes