is whether the judge and in ohio one state contracts and fraud claims serves the bar interest under claim preclusion the separately filed california anti trust claims that include an additional party and that as we will see were predicated on different facts in different time periods the question is do we have richard caught a simply because there are no overlap of some damages and witnesses and the answer in the case law and the answer under the right to have a this and trust conspiracy addressed is no multiple occasions that you cannot look at the issue with the level of generality of the two claims and in particular you must narrowly construe rest of the cup which then of course brings us to the issue really which is  honor in no if i might the word claim has a technical meaning of the or other restatement as to what a cause of action is it does not mean just a different label that could be the same claim it defines cause of action as the same transaction or currents that is the identity or the sameness of the claim so when we're looking at that i will bring back my own journalism background and say we should ask questions which is why we should ask a person who when what where and why let's if we could start with the who because when we're looking at the identity or sameness of the claims we ask ourselves what we look at the parties we look at the transactions we look at the nature of the evidence the ohio claim was only scots and central monsanto was not not a party and was specific excluded from being a claim one of the factors considered when it decided not to look at certain evidence as it being immaterial for summary judgment was that monsanto was not even a party that case that's after the counter claims are brought your honor if you look at that part of the record you'll see th said or any act of monsanto not only because monsanto is not a party but because it's not material to determine what's going on in the in this case i submit your honor that you cannot in one court say evidence say now is overlapping our clients put in evidence of the cripple monsanto they say that's overlapping i'm highlighting the judge fargus i'm pages two twenty two thirty eight said it was not only a different deal don't tell me about that finalize ation of the first agreement the round of agreement is not until september thirtieth the ortho acquisition agreement not till november eleventh the ice for the i p l to agreement not until the following year the the finale not to the following year and ongoing because the steering committee meets enrollee so if you if you little and i think perhaps i hope is helpful it's the product of my fifteen year old so forget it who is taking geometry a sufficient overlap to preclude my client which brings us really to the to what what is the evidence itself the evidence in the ohio case dealt with a supposed joint venture with respect to these products they would share in the benefits there was a breach of the promise allegedly because they didn't intend to reform that it to be contrast in our venn diagram analysis with the rather scott or essential garden entered into with monsanto pressure and it turns out that scott enters into a contract with monsanto and then according to the counter claim doesn't contract doesn't answer that if i might be pressed to cut a question if you take a look at colonial penn case to sign our brief from the seventh circuit the mere fact that you might have separate wrongs that are connected through a single contract does absolutely contract furthermore your honor the contract claim itself we have to remember that judge sharga said it's a different deal now that has to mean something your honor if it's the same deal then i understand the bend diagram overlap but it's a different it is in fact they by not my not going for the contract they affection of the destruction of our business it is probable that therefore the end trusting in part or in large part was in fact also the destruction of business from a different source during the labor the labor is mishandled and that they say that contributed the abnormalities that sounds like the same for the action it is not and i can give i just read this last night you can read a case sounds like it but in fact it's different time periods different witnesses different the transaction it's tied together but the source of the damages is different they say that's different you're under five and i abolished you show me unity you run me over today we can now you run you over again those are clearly separate still sue because when you're under the contract you didn't think you were going to perform damages would be quite a bit different might be almost zero but if you can demonstrate that you saw it was going on wallenstein yeah they might be identical your honor i don't disagree with that but the mere fact that issues overlap let me just my last moment i could your honor i want to i don't want to lose the waiver argument i want to talk about that for a moment the law is clear that you cannot just let two paces go forward and not raise the issue and get to the doorstep of trial you have an obligation if you want to protect yourself against multiple claims from doing more than raising it as a boilerplate of herman defense you must raise it at the earliest opportunity in this case but this isn't any insufficient it was not only perfunctory but it was like your honor is well aware of the twelve b three then you just you can make a twelve b three venue attack as an affirmative test but the law says you can't wait to get to trial to raise it you must raise it in a timely fashion to file rule would be one example the transfer of venue would be another example of the coordination of actions and in fact your honor for the spend is going to come in and say we have been prejudiced because there's these two cases you say to one dimension that you think these are separate transactions we did what we thought was appropriate but putting that to one side you're out of the law imposes the burden on the party seeking its protection and we set a good number of cases that say you cannot lie in wait and wait until what happens to your honor then there's a reason why this makes sense in this case not just because you spent several years litigating and we could avoid this by some form of agreed upon work that if you're going to complain about it don't wait until the very last minute that's the law i guess the basis for my question was judge chesney's reference to the fact that it wasn't until the counter claim was filed in the ohio action and the reason it took that long was because of all of the creating answer  complaints were filed that that was the case as the court just noted in the california case the essence of the claim was that the solaris transactions were an antitrust violation and in the ohio case the essence of the claims as these claims of all before the two courts they became more and more similar and we also explained this in our previous as the evidence developed in support of each and its central each claim forward in front of the courts before which it was pending it made the business in both cases simple submitted the exact same expert report seeking the exact same three hundred million dollars in damages now there was there is something that was not clear from the breach and i apologize for that the judge to asked about that i did want to point out there was one additional damage claim in the ohio parents all of the damages in the california case comprise the terminations of the distribution business and the alleged destruction of it and the core of the alleged monopolization any other allegation in the end i trust case beyond the allegation of the alleged destruction of the business were not actually part of the and i trust her and the reason i say that is this  absolutely i would also like to point out that it wasn't just that boilerplate as they call it an allegation which has been held specifically to be sufficient that is the ohio courts specifically rejected rejected the contention we also put in our brief right after they filed that claim we noted and judge starkest noted in his order they claim you're asserting now which came out of the blue that you're entitled to share and you know wedged and i trust conspiracy sure sounds like it's part of the case in it when it's a possibility that brings in the mirror image your honor let me simply say conspiracy relevant market market control interstate commerce not a single one of those issues that will occupy your honor knows weeks and weeks of trial was even part of the case there was a different measure of damages and we indicate the case of one last point your honor is not a word here about ongoing any trust violations and harkins that survives no matter what because an ongoing any trust violation in summer your honor let me say this the acquisition sharing agreement was violated even if the subject matter of the contracted not by the trust law the any trust claims were violated even if there was never an accusation sharing  i grant does not overlap sufficiently to impose the very harsh remedy of rest you to cotton no matter how much we all might want to see this case go away but you know your honor it's an ongoing and trust conspiracy and they're saying no more injunction