cases of clone wal mart case first i want to talk about time the second thing i want to talk about is whether there was adequate representation and four and while mart sells expressively page one can conduct occurring after december thirty one to start thousand three is not precluded from being the and it was stricken before the wal mart settled hi and let's read again how to get stricken if you strike it is just not ok over my dead body it was stricken over my objection by was settled and had the fairness hearing it was no part of the the wal mart settlement or the now let me give you the second reason why if you're already gene join price fixing discrimination you have adversaries must be demonstrated that the in the condition of the bar is consistent with due process and that's i think the same rule that this for court use in other words you have to see there that determined as to large joint price fixing because that was not in the complaint and there was nobody representing that and there's nobody that couldn't because since it was a represent different groups he has to have biases and you get different attorneys for the subclass but they didn't do that here so they had two problems here your honor this claim of  fixing discrimination had been dismissed from our complaint and if it had been there they would have had to worry about getting representation because the replay units representing wal mart and so forth set different deposit fees or ranges of deposit fees for different classes of customers of acquiring banks presumably by setting different  for these different classes and this is why i'm feeling the judge ruled that out he said the allegation of price differentials between customers  find that there was adequate representation because the paragraph eight ugly settlement agreement provides a beginning in august first and ending in december the two thirds that the master card we're charging for this period of time where price fixing themselves and if they said that they could reduce them it was a good thing to reduce we can trade those two you can't trade bills through you can't create a price fixing violation now you could trade how much you think they're worth if we're talking about damages in the past you could talk about that but here they're enjoying they're enjoying this trying which was what we think wal mart was abolished but they're letting this price fixing of the energy three continue and not only that it started before they even had the hearing on the fairness so that this price fixing which was in the settlement agreement went from august first of december think i'm fine i'll just try to speak up thank you of begin with a question that mr archer raised and that is the allegation regarding joint marketing that was stricken by the district court the lower earlier in the proceedings that order is not currently appealed from that issue was not specified as the issues presented for review by this court if as i understand the argument mr archer is making it's that in the earlier dismissal in april of two thousand and three where judge white struck certain allegations in the complaint regarding joint marketing and i believe mr archer was asserting that those allegations therefore could not have been simply intended to provide may simply be intended to provide factual support for the contention that the interchange fees are not by competitive forces so the court observed that it might provide context  the central interchange challenge but that the language in and of itself did not state in and i trust claim and as providing context for the interchange challenge that allegation is in compassed within the scope of the wal mart release central interchange challenges in this case are because as the district court found in new york the interchange allegations or a virtual clone of the interchange allegations that made up the part of the wal mart litigation so the joint marketing allegations are nothing different there simply context or elaboration on the interchange allegations and in any event that order is not presently before the court on review and if it weren't before the court discrimination between march and all of whom were part of the wal mart class could not have been located there without effort representation  well the the walmart first of all mr archer had the opportunity to make all of the allegations he's raising this morning about purported conflicts among members of the wal mart class in the new york courts and he did not make those arguments to the new york courts the case was fully the settlement agreement and release were fully scrutinized by the district court based on a comprehensive record there were no such allegations of conflict among larger or smaller merchant class members made in the new york court by any of the objectors there were a small number of objects out of five million class members some eighteen objector appeared fifteen of those were professional objectors as the court called them there were no allegations of conflicts among cast members made the district court which was quite familiar with the record based on seven years of having had that case litigated before it found after an extensive inquiry at which mr archer appeared and represented his clients at the fairness hearing that the settlement was fair reasonable and accurate the second  circuit affirmed that finding and i think the central point to bring to the court's attention this morning is that mr archer and his clients have had their day in court in challenging that settlement they are here this morning effectively asking this panel to reopen and we evaluate the reasonableness of the settlement that has been approved by another just a district court in another circuit in affirmed on appeal in a proceeding in which mr archer personally appeared filed briefing filed objections appeared and argued at the settlement hearing and made virtually these identical arguments on appeal to the second circuit in fact the reigns plaintiff's arguments on appeal in the second circuit what you just told us in terms of the conflict in terms of mr archer making the same allegations regarding this firstly they have separate representations various security mr archer did not included in his briefing in this matter to the new york courts and those claims were considered and rejected on the merits he did not make the argument that he has made here this morning regarding a purported conflict among the wal mart class members but the wal mart class was able he represented in the new york proceedings of the court commented favorably on the quality of the representation by class counsel who had might have created a conflict or a divergence of interests between the cost representatives and any of the absent class members that they have since that hearing which changed the situation between the class members and the wal mart class to make it appear that there is a conflict but it wasn't there no you're right or in fact these plaintiffs participated in the wal mart settlement on equal terms with all other class members there is nothing in the their own settlements and those are the kinds of circumstances to which the courts look when considering whether a collateral attack on a class that all men are to be entertained in the normal course of this type of collateral attack appears it is it is true that the release on its terms we recent claims based on conduct that occurred prior to january one two thousand and four there are now actually a large number of cases pending and they have just been consolidated before judge gleason in a mile district litigation there are some forty seven new actions challenging what we call the interchange fees forty of them are class certainly arguments that could be made that the conduct is the same in the therefore the release applies but as i said there is no determination at this point whether and how the release would apply to the new interchange cases if mr archer's clients continued after january one two thousand and four to the merchants who accepted these and master card payment cards they presumably would be members of the classes that have been alleged in the new multi district litigation in new york and therefore their interests would continue to be fully represented with respect to post january one two thousand and four  complaint yet the cases of mr parker be barred in any way from pursuing his claims in this litigation for conduct which took place after january first two thousand and four those claims were not pleaded in this compl complaint were alleged in june of two thousand and two when the complaint was filed and are based on conduct prior to june two thousand and four mr archer's complaint sought future damages and injunctive relief based on past conduct he did not nor could he have alleged claims for conduct after january when two thousand and four except by amendment which he did not request from the district court should we now allow an amendment your honor as i said the interchange case is currently pending but a large number of them are class actions in new york will fully and adequately protect the interests of the class members including mr archer's clients in this matter assuming that they met the otherwise were qualified and met the standards for class membership so i see nothing to be gained nor any efficiency resulting from allowing an amendment in this matter to allow mr archer to proceed with post january one two thousand four claims but on the record as it now stands mr archer sought only damages and injunctive relief in the future based on conduct that was the subject of the wal mart re but i would return to the point yes you have me even then we shouldn't preclude his doing that in this suit if you wish to do it it may be costly it may be any fish and but that's not archer had alleged claims based on interchange and that certain other claims had been dismissed the court made no specific reference to the joint marketing allegation or to the basis for the dismissal and certainly made no discussion at all about whether the joint marketing allegation would or would not have been in compassed by the walmart release but as the district court below in this case observed the joint marketing allegation was nothing more than if you will window dressing or context for the central interchange allegation the joint marketing allegation in the complaint said basically that the defendant associations and mastercard six different interchange set interchange century and that that is the section one violation and that they set to different interchange levels for different merchants that's what mr archer cost joint marketing if that there is not a one size fits all interchange fee but that different interchange rates are applied for example to a grocery store as opposed to a wal mart  discount retailer and that was what mr archer called a joint marketing violation the district court found that that allegation in an of itself was nothing more than an elaboration or context for interchange for the central interchange claim which has been released and you claim that's not on appeal that is correct your honor that is not specified the the district court's opinion of the decision of april twenty one is not included in the excerpts of record and that joint marketing issue or any aspect of that order for that matter is not specified among the statement of issues presented for review by this court at this time i would return to the point that mr archer makes about adequacy of representation of his interests his client interest in the wal mart settlement which appears to be the ground on which he now seeks to collaterally attack the findings of the new york courts it is true that there is a requirement of adequate representation but that requirement does not mean what mr archer which purports to according to mr archer it does not mean that the claims that have been released must have been actually litigated in the settlement court or in the certifying court adequacy of representation means that there must have been an alignment of interests between class members it does not mean proving vigorous pursuit of the released claim that is the statement that is the second circuit's holding rejecting exactly this argument made by mr archer in the new york proceedings and mr archer does not dispute that his members that his pla for members of the warm are wal mart class that they shared fully and equitably in the wal mart settlement proceedings and there is no suggestion in a record of any kind that the claims of abs disparity of interests between the objecting party and the class representatives to settle the case the injuries of the objecting party arose after the expiration of the settlement fund for agent orange and injured injuries so that he received no compensation and in fact the settlement did not apply to him and other similarly situated persons who discovered their injuries after january one thousand nine hundred ninety four we have nothing like that in the record here there is no suggestion that these plaintiffs we're inequitably treated and in the normal course that the federal courts will not revisit and will not reopen a class settlement approval by another court and must find if there is some showing of this kind which doesn't exist here mr archer has had his day in court he presented his arguments he were considered thoughtfully and disposed of and no time did i bring before the wal mart court the question of the dismissal of the joint mark of being discriminatory price fixing claim because it had been dismissed prior to that settlement