that's intended to benefit both pharmacies and consumers what that provision does is it makes it a violation for the defendants to assist in processing prescription drug claims and less they st perform obtain a survey and distribute that survey to their clients and that survey must be distributed an updated every two years the california supreme court has held that this statute can be easily described as having a public purpose now underlying this appeal is a question that i think both sides need to answer that question is as follows what happens if this court affirms because otherwise the statute of limitations would have begin to run on continued violations but but you're correct that they went to state court and they went to state court so that the statute didn't run on those continued violations since the original dismiss at the start of this case way back in around twenty million twenty two thousand and three was an article three standing grounds and article three doesn't apply in state court but these would be the only plainest whom the statute is unconstitutional that gets to the restatement seventy adopted by the california courts which i'll get to in a nd but if the answer to the question i posed is that plaintiffs would not be barred if they filed a new lawsuit for new violations then there is no basis here to find that the post bradley violations as we described them in our brief meeting violations that the statute that took place after the judgment in the state court action there would be no basis to find that those violations  because st of all they were raised in the district court st the public interest exception was specifically raised in the district court and discussed in the district court's order with respect to the an equal application of the laws in this continuing violations issue that also was specifically raised in the district court that your court's order discusses the louis stores case which is the st case in california that adopted section seventy of the restatement and i can read a couple of quotes with respect to the continuing violations at subtle excerpts of record seventy seven dollars it was argued that if that motion was ruled against plaintiffs that they would be subject to different standards going forward meaning subject to different standards than all the other pharmacies in the state had oral argument on the motion for summary judgment at excerpts of record one hundred and sixty two dollars it was also specifically argued that plaintiffs were precluded they would be quote the doesn't that concept waver so st of all as to reconsideration your honor the district court's decision in two thousand and seven was premised on the notion that the statute was constitutional the district court had already found the statute was constitutional and had already found that the state court was wrong and holding it was in ca unconstitutional they didn't but that didn't matter as far as it should be that's exactly your honor the district court didn't think it mattered that the statute was unconstitutional so when the california supreme court later agreed with the district court's ruling that the statute was unconstitutional that didn't change anything as are related to the district court's analysis the district court had already decided the motion on the assumption and the explicit finding that the statute was and was constitutional so when the beeman decision comes down from the california supreme court it merely reaffirmed what the district court had already assumed and ruling on the motion so there was really nothing to reconsider because the facts were the same as what the district court had concluded that said if it was required to be raised the plaintiff specifically did bring the issue to the district court's attention now they didn't file a specific quote unquote motion for reconsideration but they brought it to the court's attention and that was i'll get you the cite for that in a nd but in addition to that the cour of course knew about the human decision because after this court certified it to the california supreme court it rather back to the th circuit and there was a reminder so it's not as though the district court wasn't aware of being a man and it was brought up in a  e twenty six f report and the cases cited by the defense for the proposition that you need to file a motion for reconsideration don't actually say that but they never actually say you have to file a motion for reconsideration what they say is that you should bring any change in the law to the attention of the district court and this was brought to the attention of the district court but again the ruling didn't hinge on the constitutionality or  deals specifically with instances like this where there is litigation on an issue of law between two parties there are new violations here a statute and whether or not that can be related st adopted by the supreme court in lieu of stores and subsequently i'd like to actually read section seventy of the restatement states the determination of a question of law by a judgment conclusive between the parties and a subsequent action on a different cause of action even though both cases excuse me even though both causes of action arose out of the same subject matter or transaction if it would be unjust to one of the parties or to rd persons to apply one rule of law and subsequent actions between the same parties in to apply a different rule of law between other persons in other words even if you lost city of palo alto which was cited in the briefs what happened in fein was that a city had adopted a weed ordinance related to growing weeds on your property the plaintiff was assessed the fine for violating the weed ordinance he challenge the fine he claimed that the city's ordinance was unconstitutional he lost the court said that the ordinance was constitutional in another tax year he's still growing weeds on his property  he gets assessed a new fine in other words a new violation he challenges the nd finding he says the ordinance is unconstitutional and the california court of appeal addressed whether or not preclude him that in the nd case he could challenge the constitutionality of the ordinance even though he had lost that issue in his st case and in fact when they held that they went on to say that the court was right in the st place they held again that it was constitutional so it's not as though his ability to challenge it hinged on whether or not the st court was right or wrong as the constitutionality instead it hinged on the fact that it would be unfair and not consistent with california law to apply in both cases the court said quote appellant would be bound by the ordinance and its notice provisions would be valid and effective against him even though other property owners might successfully object to the validity of the ordinance and prevent the impact of its procedures upon their property therefore we feel that implicit in our review of this case is the necessity of considering whether the ordinance is valid and why doesn't this f'ing court california this is just not really doing this appeal because later doesn't deal with the an act unequal application of the was it doesn't deal with section seventy of the restatement so there's there's two different doctrines in california both of which are being raised here one is the public interest exception to issue preclusion that's discussed in the breeze the nd is called various things at different points in time but it's the an equal administration of the laws that the laws can be applied differently here to plaintiffs they and others and that it's a pure question of law and so slater does not in any way abrogate whether or not the unequal application of the laws exception applies and in fact although not specifically citing to section seven of the restatement the same concept is discussed in the rather for a case which is discussed in the briefs which is from  eighty seven and well post states slater and it's also pointed out in the f t v case which is a twenty seven thousand dollars case slater has never overruled greenfield and there's never been any case nor my aware of any case that overrules the holdings of the california supreme court in both lewis stores and the city of san fernando case both of which explicitly adopt section seventy of the restate weekend this issue here is a pure issue of law the facts below were undisputed the district court's order specifically states it's being decided based upon undisputed facts there's no dispute here that california law applies since the state court judgment and has the cases we've cited say under california law the judge has no discretion in whether or not applies there is no discretion it's a pure issue of law it's it's basically under speed record issue of law and therefore the standard of review is here to know during the four why should we allow you to go back and do that well with i don't know exactly what you mean your honor with respect to substituted in but they had been dismissed from the case they have had lost the case on an issue in two thousand and seven so i'm not aware of any authority that you could substitute back in for a case essentially file a motion to intervene i think is what you're suggesting went when you've already lost the case if you're referencing class certification clas is not an issue on this appeal these plaintiffs have their own personal claims on behalf of themselves whatever impact there may or may not be on class certification would be an issue for the district court if this court were to reverse it presents a very straightforward case to apply settled rules of collateral estoppel while the federal actions in beamin or on appeal to this court for the very st time the three opponents that are before you today separated themselves out and pursued a final judgment a claim all the way to final judgment in state court mr sims just referenced how they had to do that because the statue imitations were about to expire well why didn't all five of the plaintiffs do that it's because there was very tactical use of state and federal fora now there's nothing in the law to prevent them to do that but by doing so they accepted the risk that one of these cases would proceed to final judgment and that is personally what happened in the bradley case there are two grounds for affirming the judgment in this case two very straightforward grounds st we argue that this is a very clear case of waiver at no point in the district court once it was remanded in april of two thousand fourteen until final judgment last year did appellants come forward and say to judge phillips to chief judge phillips we're here and you should consider our claims at no point did they do that and in fact we had substitution motions where the two remaining plaintiffs the two that had to remain in federal court and had had not come to state court had passed away their heirs and representatives were brought forward as class reps those claims were also ultimately rejected across certification those those are the claims that lead to a terminating sanctions a war that actually leak brings us here today that was the final judgment indeed not only did these appellants not come forward there was actually an attempt by counsel to bring forward yet a brand new a motion under rule fifty nine dollars easy to alter or amend the judgment or finally under rule sixty b six they could have filed a motion for relief from a final judgment or order your honor they did none of these things the only thing in the record that is before you today is a passing reference and it is rule twenty six f report where they claim that they have the right to basically resume and proceed to pursue their claims there was never any argument at any point time and that's why i was bringing up mr bodo and his pharmacy ran cross pharmacy after the terminating sanctions award and indeed before this rule twenty six f report they actually former counsel although one of the firms remains involved here but the former lawyers that were leading this action actually brought forward a brand new plaintiff who hadn't appeared in even the state of the federal actions and said ok we can cure the deficiencies with class certification with this brand new plane or so council skip rule twenty six f motion the types of very very serious legal issues that are presented to this court it can't be the case that on appeal nearly twelve years later we're really getting something that happened in two thousand and seven and that's the fundamental problem counsel this year same argument apply to what's in the polls brantley claims it does your honor and slater case answers that exact question that's a decision from our supreme court of california where you basically had a passenger who is who was killed in albany bill accident and attempted to bring a claim under the guest statute in the lawsuit number one the guest statute was ruled unconstitutional later in a separate action the supreme court reversed and up held the guest that you so plaintiff came forward again the same plaintiff from lawsuit number one came forward and basically said we get to relive a gate this claim all over again but if there are intervening violations after actually argued that there were continuing violations but remember in two thousand and seven we were before judge philips on summary judgment we were moving parties the defendants it was incumbent on the ben plaintiffs to come forward with evidence to rebut that what did we have all we had were conclusory allegations in a declaration which are demonstrably demonstrably insufficient for the reasons we've explained in our brief saying there were continuing violations we then rebutted that and we showed that virtually all certainly my clients had actually perform studies and there were no continued violations there's a reference in page twenty one dollars of what about after all the litigation is over after all the litigation is over in that in this  again that issue was ripe for determination in two thousand and seven just asked my question if we assume that there are new validations would race to the comma apply to those if there were new violations and they were brand new violations that occurred in in let's well it might and your honor i need to be clear judge phillips decided this on issue preclusion which has additional elements then claim preclusion there might be arguments you know there was a discussion of the famous line of cases completely distinguish there were very different claims in that case they involved it involved you know one claim involved abatement there was a completely different claim in the nd case so you didn't have the same claim being brought in each case so that is not what we have here  we litigated this is this and the public interest exception were the only two issues that were actually presented to judge philips when we were deciding the collateral estoppel motion and your argument was not arguing any question i apologize your honor your hypothetical is precisely what we litigated before judge phillips in two thousand and seven and she specifically concluded that there was insufficient evidence of continuing violations so let me be clear appellant's argument i'm trying to answer your question  pulse judgment is it your position that race judicata would bar that in this case yes and let me explain why because that allegation even if it was dated in two thousand and nineteen is the exact same allegation that was raised and decided before her in two thousand and seven so you characterize that as another offshoot of the continuing theory exactly your honor and let me analogize it to the slater case again much more tragic circumstances there are no tragic circumstances here at all other than our clients having been subjected to this continuing litigation but you have there someone actually died and the argument was well the california supreme court changed the law we have to be able to be heard on that so it wasn't quite a situation of continuing violations but it was a situation where someone came forward and said the law has changed on us we now have to have an opportunity to basically litigate these claims for which the statute hasn't run on this on this this new decision from the california supreme court and the court said no you can't do that i was you know i was remar it was remarkable to hear mr simms actually suggest that the supreme in answering judge nelson's question that the supreme court  slater did not consider the act in equities did not consider the fact that certain plaintiffs might be treated differently in fact it did express we do that in at fifteen calford of page seven hundred and ninety seven and it's a lengthy excerpt forgive me but i like to read it because i think it addresses all of these issues the court how it cannot be denied that judicial or legislative action which results in the overturning of a stablish legal principles often leads to seemingly arbitrary and unwanted distinctions in the treatment accorded similarly situated parties and then it continues the consistent application of the traditional principle that final judgments even a rony us ones or a bar to further proceedings based on the same cause of action is necessary to the well ordered functioning of the judicial process it should not be impaired for the benefit of particular plaintiffs regardless of the sympathy their plight may arrives in a specific case we dispute that there's any sympathy appellants who had a full and fair opportunity having made the strategic decision to pursue their claims and bradley to final judgment we dispute that there's any sympathy but this our supreme court has addressed this exact issue and it's stated that you cannot rely on that yes they're right they are the only three appellants and the only three pharmacies in the state who are prohibited from pursuing these claims but that's not because they were deprived an opportunity to actually litigate those claims they did and they made that strategic decision and when you file parallel actions one of the risks you undertake is that one of them will proceed to final judgment the reason having some difficulty with your argument is say for instance in the title seven arena if a person brings the lawsuit for for discrimination on the basis of race because of an employment action taken in that employment and that is denied and then a subsequent action taken they're not bar because of the ruling in the prior action from going for some trial and having some difficulty reconciling that with and that your honor i very much appreciate the clarification because now i understand where you're coming from the hypothetical that you just gave is very different because you said it's a different instance of discrimination now they may be connected it may be for i'll just make an example a racial slur and it's the same racial slur but it's two separate instances and not that's what i was going to do your honor if it were the same incident in your hypothetical and all they were doing is saying well the law now changed on us we get an opportunity now let's say for example there was a decision by the supreme court just this week on an administrative exhaustive requirement now we get to reload a gate that same instance and this is why and i'll try again i know it was in addressing it earlier in two thousand and seven the exact same argument that's being raised today as a post proudly violation a brand new violation they call it was exactly where we were in two thousand and seven by two thousand and seven most of the defendants including my clients had performed fee studies they had complied with the statute so it was the incumbent on them in carrying their burden to oppose summary judgment to come forward and in your honour's hypothetical say this is now a new incident different from the one that was actually litigated and finally decided before they didn't do that so the arguments that are now being raised in this appeal are the exact same arguments that were presented in two thousand and seven and they didn't carry their evidentiary burden in opposing summary judgment and your honor it's critically important because when we run remained for those four years there was evidence in the record i took the depositions of the substitute plaintiffs i showed them the study one of the reasons judge folks found them to be inadequate was they couldn't tell me what was wrong with the studies we performed the studies that when you launched this lawsuit you contended that we didn't conduct now we've done them what's wrong and this is another reason why your honor you should decide this appeal on the basis of waiver because in your hypothetical if those were the arguments presented to judge philips we would have rebutted them i would have had a evidential record to so we weren't discussing hypotheticals well i could say see this is the exact same argument that was presented to you in two thousand and seven this is why we shouldn't and can't be in a situation where essentially litigating a motion for reconsideration for the  time before the appellate court so again we would respectfully submit that you decide this on the basis of of way or let me just briefly in my nd set remain address the manifest injustice exception it's really the principle exception the rules of that they rely upon in their briefs both for the pre and post probably violations st waived at no point was this discussed raised whatsoever in the district court nd as the slater court found this it's not even clear that this exception is valid it's of quote doubtful validity validity and has been quote severely criticized this court has never relied on the manifest injustice exception moreover the slater court the city of sacramento court and the f t v case upon which they rely explicitly distinguish the manifest injustice exception and hold but it does not apply when the only basis for invoking it is a so called change in the law if your honor every time you assist in filling a prescription it's a new violation of the statute the study has to be distributed every two years so if this  slater case this would be a nd car accident it's a totally new violation slater only deals with it's the same exact violation that's not the case here with respect to summary judgment they move for summary judgment on a single ground they move for summary judgment on the grounds of preclusion they didn't move on the grounds that they had continued to violate the statute if they wanted to move on grounds that they didn't continue to violate the statute they had to put in evidence you have to tell the other side this is the ground i'm moving on and here is my evidence if they would have done that we would have rebutted it whether or not they continue to violate the statute has never been litigated never once the only time that has ever come up was when they took the depositions that the people who are not plaintiffs here and those people supposedly didn't understand enough about the case but whether or not they've done the studies has never been litigated and we believe that most of the defendants didn't do a study at all and that with respect to any that did that the study was inadequate now also on that point f d r for fifty nine dollars and for sixty as well as for sixty two dollars they conceded on summary judgment that they continued to violate the statute they conceded for purposes of that motion that wasn't litigated final point you asked for the site earlier with respect to where this was brought to the attention of the district court that's an s c r three and their argument is basically as follows well beeman came down in beam and confirmed that she was right so you should have told her that you had in your argument basically got better it's a canter basically saying in this court if i make an argument i've preserved the argument the fact that there's a later case if i don't file a notice of supplemental authority based