hand and explain a few ground rules as we move forward today i will keep the time since we are not in the courtroom and you can see the time clock i'm doing that on my so it will be a little imperfect as we move through the arguments today and i ask your indulgence with some flexibility for your opposing counsel i will give everyone an approximate one minute warning as you are approaching the end of your time for your opening argument and then with all arguments as well so with that let's call proceed thank you good morning may it please the court we are here today asking the court to reverse the district court's judgment and remand this case to the district court so that discovery can be begin your duty claim on a rule twelve motion without any facts discovery it cannot or three key reasons first breach claim does not require the its nd even if adjudication required some a valuation of the terms of the track address agreement fairness is not an element of breach of producer duty under indiana law so the court need not evaluate the that's correct your honor the well actually it's a it's a fine point the the agency has exempted the transaction from approval and so in effect what's happened is affect the underlying the liturgy of the agreement that's brought before it yes he is not equipped to make such a decision and it made it very clear in this case when it when it denies the p m s request to stay the exemption proceeding and your honor there's an important point in that as well which is that if you look at indiana fiduciary duty law and this goes your question about remedies indiana courts are vested with the full power of traditional equity courts to fashion flexible remedies in cases where there is a breach of producer duty involving a minority shareholder and that reflects the unique nature of minority shareholder rights in a closely held corporation in their ability to go out on an open market and and sell their shares and get a fair market price for it so courts have full equity power to craft an appropriate remedy to redress the misconduct federal agencies do not have inherent equity powers yes he does not have all of the equitable tools that are at the disposal of state or federal court t fashion appropriate relief for for the conduct or the misconduct that's at issue and so that's an example of the the disconnect between the remedies that c p s seeking contrary regarding consolidated rails preemption arguments on the section why haven't you waived your arguments with respect to that section yes  that's what the district court's point was that you didn't develop arguments in response to their preemption argument in light of that why haven't you waived those arguments with respect to that statutory pr motion as i as i noted in the very beginning of my presentation this is a pure question of law the issues before this court involves statutory construction and whether the whether the preemption statute at issue can reach the conduct that we've alleged in our amended complaint this court has held on several occasions that where the where the issue before it turns on a pure issue of law in particular an issue of statutory construction that is not  that the court often exercises its discretion to reach that issue even if the court deems the argument way so even if this this court believe that argument has been waived you have discretion which you frequently use to address these types of statutory construction issues and and issues that affect not just the parties before the court but affect the interpretation of a victimless will which will have implications for many other parties who are not at the table i want to i want to pivot to the fairness issue under indiana law quickly even if b p the allegations do relate in some way to trackage rights agreements the shareholders argue that this breach claim cannot be adjudicated without assessing the fairness of the rate that is the fairness of the rental rate on the track to drive to agreement but fairness is is not an element of breach of producer duty under indiana law under indiana statute the fairness of a transaction is considered only where the sole basis or if it is jury duty claim is a conflict of interest and we have alleged b p has alleged in its breach claim conduct that goes beyond a mere conflict of interest by the majority shareholders to include breaches of their duty of oil to their duty of good faith to the to the corporation and to the minority shareholders of the right to meaningfully participate fully in the management of the corporation those allegations are separate and apart from a conflict of interest noted that the district court was already considering the breach a producer did produce jury duty issue that c p had raised that yesterday be it then observe that these types of contractual dispute are for the court not for the issues with the agreement those issues need to be addressed at the district court not at the t v now the appellate argue that congress can eliminate remedies when when it wants to  and that's true but it did not do that in effect to preempt only remedies with respect to the regulation of rail transportation as the th circuit observed in florida east coast railway versus west palm beach the focus of victim was on removing direct regulation of railroads now if it does provide remedies with respect to the regulation of rail competition and railroad rates but it will take you to provide no remedy for general indiana corporate governance law or for allegations of shareholder oppression it's simply not here we know that the s t b did not view the breach claim as an impediment the majority shareholder specifically asked not to address the breach claim and the s t b just did just that it's specifically declined to reach the a classic wall synch wolf in sheep's clothing d p terrorists about one thing and one thing only on doing the master tracking to rights agreement and placing it with the so called agreement should should be brought down but they're not seeking a declaration that canadian pacific have any remedy for the alleged misconduct which at this stage we have to accept the allegations are true well as in other words can they bring a breach of fiduciary claim before the being formed and the only thing that is permissible under x for a state court to do is to make a decision that there is an absence of contract formation for example an was so high as to put the future operations of i s p at risk and that made it anti competitive fate has a proceeding before the eye for should we make of the language in the s t opinion on the state of the exemption that if the district court voids the agreement c p s may file a petition to recheck to revoke the notices at that time preemption when we got to federal court purported to be a decision on the merits of  the court refused to excused a waiver by the county and responding to a motion to dismiss so it's kind of similar procedurally to our case and the reason the court did it was that the county was represented by able townsell who should have exercised in responding to the motion to dismiss well that's precisely the situation here they had a very when it allowed the exemption proceeding to move forward and we know that again because yes he said exactly that it said the indiana last name must be resolved in court judgment on excess or liability plaintiff then brought a claim for success or liability after approval and so there clearly there was an exemption of success or liability here again we have allegations as your honor acknowledged that are broader than that and that needs me to my rd point with respect to remedies counsel suggests that  that our claim is a wolf in sheep's clothing d and that it's all about the t r a well there are allegations and remedies again that are broader than that for example i'll just hit on this again the request for a types of economic recovery and other remedies as a as an equity court  also appeared to acknowledge in his presentation that contract formation issues would not be preempted under under if and i think  that's really our point when you when you review the s t be proceeding and the regulatory framework in which the s t b is evaluating the trackage rights agreement and i'm looking now at forty nine c f and eighty point to some part d the board has found that its prior review and approval of these transactions is not necessary to carry out rail transportation  it allows the exemption to move forward with a thirty day notice rubberstamp unless there are objection point i will make is an alternative basis for for resolving the preemption issue that is before the court the court could ultimately it should be applied under a factor analysis and the implied preemption framework with that your honor i would request that you reverse the judgment of the district court and we may end this case for discovery all right thank you very much