thank you your honor may it please the court counsel i have reserved five minutes for rebuttal i'll try to get right to the point why isn't this claim barred by the statute of limitations the district court below determined that it needed to rely on the state courts reasoning that the state court statute of limitations  barred the claim and that the district court in the federal system felt constrained by that problem number one we believe is that the timing and accrual of a plaintiff's claim under the united states constitution is judgment on the merits under minnesota law and minnesota law is what we look to here for this issue but this general rule like most general rules is subject to a host of exceptions and a wide ranging ability for the courts to apply and reach what would be a fair or just decision under all the circumstances and so we see a lot of case law saying race to the cut is a discretionary doctrine should be applied cautiously focuses on whether the doctrine would work and justice should be invoked only after careful inquiry because it may govern grounds and offenses not previously litigated in blockade like  well i think what we're talking about at least our position your honor is this whole host of case law that says the courts are not constrained by the black letter res judicata principles  where justice requires that they be disregarded in this case the point the primary point that we would like to make is that no court anywhere has ever applied the federal law governing the statute of limitations for a claim of a taking under the united states constitution the only analysis that this plaintiff has ever had the benefit of ok well you know what i haven't spent a lot i haven't spent a lot of time on san remo because it's not it's not germane to what we believe is our most significant argue with respect to race judicata and that is that you have to apply the state court principles of res judicata and in minnesota it is a soft doctrine it is not a hard letter of the law proposition and again this plaintive has never had the chance to have any juror judicial analysis of what everyone knows to be the principles that govern whether a claim under the united states constitution is barred that's a matter of federal law that we've briefs substantially and no court has ever passed on that and we think that it's clear under principles of race utica that this court no court is constrained under these circumstances from deciding that hey you know these guys deserve a fair shake let's apply and let's walk through the analysis that applies where we have a united states constitution based takings claim and that analysis this court has recently gone through a very recently in the supplemental opinion that we submitted to the court the propane case and and an anti trust case it's called in re fill propane tank any trust litigation recent eight circuit authority and and what happens in that case is that we've this i'm lawful conspiracy to fix prices and there's no debate that this conspiracy took place beyond the statute of limitations it's too old if you're just looking at the conspiracy alone and the court of appeals this  that's true but the conspiracy the consummation of the conspiracy did not end the unlawful conduct it started and we've got ongoing super competitive sales within the statutory period and so we have a continuing violation that the plaintiff is entitle to get to the merits on because we've got these overt acts these super competitive sales  the analogy is we've got this breathtakingly broad settlement agreement by the state the state claims that that was the beginning middle and end of anything that happened here but under the principles of a continuing violation as articulated by this court following but i think what what you're getting at least as i understand it your honor what i'm talking about is the state's argument on the statute of limitations they're saying it's not a continuing violation because when the state signed violation yes but sections of the play yes the fact that the damages from the merger went on for decades doesn't matter the cause of action accrued at the at the time of the of the of the the taking may have been the settlement agreement your honor but it was the start of the ongoing annual taking so my best argument it's the facts which every year they get a check they keep the whole check so word appreciate that i wish i could put my finger on it faster than i am able to hear i will do that with all of you can you can do it you could do page fourteen your honor of the brief where i say it's the last paragraph say the continuing violation doctrine has been repeatedly applied in takings cases and we say to a number of takings cases and so that's basically the proposition your honor that that underhand overshoe and under the propane decision i know you don't like my application of that here but the basic proposition is no court has ever applied those federal principles  imitations issues as well so the the crux that i think the essential failure of the playoffs under statue limitations analysis is what they're saying is the statute of limitations cannot begin to run until after they've lost the state court action because it's not right the problem with that argument is that their federal cause of action was always right it just wasn't right to be applied in federal court they could have brought in state court and in fact they did if you go back and look at their state court pleading they pledged their federal cause of action in the state court essentially what they're now saying is that there's something fundamentally unfair about the fact that the application of williamston on facts like the facts that we have here means that a pla but there was some additional language i think is relevant based on what they argued in the reply brief so i'd like to just this is that page three forty six sandrine was addressing this exact argument and this is what it says it says with respect to those federal claims that did simultaneously a player's request for compensation under state law and the claim that in the alternative the denial of compensation would violate the fifth amendment of the federal constitution reading williamson county to preclude plaintiffs from raising such claims in the attempt but your claims are always right in state court so the statue of limitations here on the federal claim started running whenever they started running you know in our view that's in one thousand nine hundred eight and the fact that they had to go to state court first doesn't do anything with respect to the statue imitation here the statue of limitations had passed before they filed any action before the father state action before they filed a federal action it was dead before they got into court and that's really i think it is difficult to stash limitations now since needs to be the whole issue of williamson and ripening is really a red herring because they could have brought these actions in state court the statue of limitations was running and the time barred now in terms of this idea violation you know we give you this analogy in the brief i think it's a good one just think of a rental building here right the state goes in and condemns an apartment building this generating rents right the taking happens when the state seizes the apartment plant can't wait twenty years and they come in and say well geez you're still collecting rance on that building those rent should be mine and so now i'm going to sue you for taking to collect the rents that you the state are now collecting right i mean how the  you know plans talk a lot about the bay laundry case it's not really applicable here they laundry was this you know this odd case where there's a statute that says if you're a participant in kind of one of these collective pension plans and  to do it that way now the plaintiffs for if we take it outside of the actual claim here let's say the plaintiffs actually had some contractual right to a stream of payments in new with me or something like that he says he's going to pay them one hundred thousand dollars a year every year for the next twenty years and the state one by one starts coming in picking off those payments year after year yeah there are some continuing violations here and when state comes in and picks off next year's of the year after years payment maybe you can come in and sue on that but that's not what happened here they didn't have a did the settlement agreement in any way cut off the rights of the individual plaintiffs to file a claim for personal injuries you mean like a common law kind of remedy let's say somebody says i got cancer from smoking could they still file that claim yes and it would cut off their right to file a consumer protection claim but if somebody said i smoked for thirty years it gave me cancer i want to file a case against that cigarette manufacturer they could they still do that under the settlement agreement yes and so basically all the happen if you really want to going to you can look some mistake or pleadings but essentially what happened was the the supreme court later interpreted the release of the state gave under the  they were facing class action problems and so they couldn't file common law cause of action that would require individualized evidence of of harm in reliance on things like that but the consumer fraud action statue is quite nice because you can basically just say well you engage in a pattern of practive deceptive conduct i was somebody who bought your cigarettes so i can recover so you know the day they could have pursued you know a claim for you know on the common law remixing i smarter cigarettes and i got cancer or whatever else they wanted to pursue the only thing that the supreme court found was you know the only other issue i really want to talk all over is just the eleventh amendment and like you've got sort of a buffet of options here on how to dispose of this case the district court elected not to get into atlanta man issue i think that the plants were able to create enough smoke down to  court should be doing and what this court should be doing and what my concern is this if we get a decision circuit which is you know has some presidential fact and you know we're dismissing for one reason or another and doesn't address the alarm from an argument we're going to then  you cannot sue the state in federal court undertakings can't just can't do it so at minimum i think this should this court if it decides not to address the issue it should be very clear that's what it's doing so that nobody mistakes that this course is somehow resolving the issue that's not what you're doing but complex analysis of san marino but if you're interested in it and you dig into these cases the talk about how you can split your claims federal and state it usually has to present some kind of unusual issue so like the one that i see a lot is florida for instance doesn't recognize regulatory takings so there's a distinction between a florida takings count and a federal takings count because the federal has a stronger right here the only thing the players haven't done is point out any difference between their state and federal law claim that there isn't one is just a straight forward you took  my claim against phillip morris and convert it to your own use there's no nuance in saying that you know how is the federal claim different than the state claim it's not there just saying well because i have a separate right under under federal law i should be able  when you apply the state court principles that sam remote tells us to you apply the principles that i mentioned where there is a lot of flexibility for race  under williamson williams and williamson tells us your honor that we have federal jurisdiction after the state court proceeding is finished and that's what we did so that we could get a federal ban remote tells us to apply race judicata by looking to state court principles i would like to point out to the distinction between the past and the future your honors because it seems to me to do the understand the case this class had a certified tobacco lights class action going on and one of those got a ten billion dollars verdict ok so it's a big deal that it got certified and curtis the minnesota supreme court said hey you know the state has already settled your claim ok and the state is keeping all of the money and no consideration is being paid to the class and so we're contending that's a taking and there's this whole host of federal case law that says if you if the government takes a cause of action away that's a cognize a bill taking under the federal constitution and so the issue becomes then whether we're time barred ok and we're not time b wing violation doctrine applies now on immunity i would respectfully suggest that the reason there is not one word in the district court's opinion regarding immunity is because it's so clear that immunity doesn't apply here we've got of the treasury and also says that the tobacco security is ation authority can sue and more importantly can be sued and so that's an express waiver of immunity and what we had below was an attempt to say by affidavit that hey we were don't really operate that way well we don't modify statutes by affidavit and i here all it takes is a reading of that statute to dismiss in its entirety this eleventh amendment argument they waived it by statute so i'm that past future thing on the statute of limitations let's i mean the facts are that next year has already been taken that there's already been a taking it seems to me that it's impossible to me what i did all right thank you unless there are any other questions i'll conclude recycler for your thank you