concerns in order granting summary judgment in favor of defendant apple e c s we believe the opinion should be reversed for three independent reasons first the opinion applies the wrong law it considers whether to commonly owned companies training scenario are yes and the right sales subsidiary c e s conspired with one another to violate wisconsin and i trust was under the copper well doctrine adopted by wisconsin these two entities are one single unit they are incapable of conspiring with one another this billings  but i'd like you to inform us and with record citations of possible what evidence there is a motion for summary judgment evidence from which a reasonable jury admittedly a wash seal trader in the relevant period now that's a very loaded question we've met lot of facts but try to educate us on whether the basic principles of copper willed which is one hundred percent owned subsidiary cannot be a separate person from section one liability under the sherman act which is very similar to the wisconsin and trust act because a one hundred percent owned subsidiary must share the purpose subsidiary c s was not a subsidiary of our yes our yes the trading subsidiary was a common subsidiary of the old reliant parent in the first year of the relevant time period are yes and c e o s were both directly owned by a company known as r e r c and indirectly owned by the overall parent which was reliant energy incorporated and i direct the court to c e s as responses to our statement a material fact on one to three to one for one of the record that will show you what we contended the evidence in support and c s response it is uncontested that in the first year of the relevant time period both c e o s and r e s or commonly owned subsidiaries of the parent that change that old line old reliant reliant energy incorporated old reliant alright and that was one hundred percent that chain the in the second year and the second year they began the process of separation a new company was created at the tail end of the first year known as reliant resources inc new reliance and that company was eighty three percent owned by the old reliant parent c s the reliance sales subsidiary were all owned by the old reliant parent it was in two thousand that was in two thousand two thousand and one january one old reliant transfers its whole pile wholesale power generation and trading business to new reliant new reliance c e s was not owned by new reliant c s was not owned by new reliance it was owned by old reliant as was and the it did and it was owned eighty three percent by reliance energy incorporated old reliant and the case law which we cited in our briefing is that majority ownership is enough it doesn't have to be one hundred percent the question i don't stand i'm just trying to write understand here because it seems to me at that point you realize and owns r e s and all reliant on c e o s old reliance still owns r e s i understand they own it through new reliant correct but  because they had eighty three percent of the stock but i let your continue to answer judge by his question i only interrupted because i want to make sure i followed what you were telling him ok and our point is until the very last month of the relevant time period both are yes and c e o s were commonly owned by the same overall parent i know it is very confusing that we walked through it in record one two three two one four one and c e o s largely agreed with our what is the time period the relevant time period is january first to two thousand through october thirty first of two thousand and two that's what i thought so you know august thirty first of two thousand to hold reliant merged with a subsidiary of centrepoint right it merged with what became the parent to center point center point energy and for one month oh into the entire reliant empire and then the next month that spun off the new realigned companies well at that point centrepoint continues to own eighty three percent of new reliant but they own all of c e o s that is correct centrepoint them distributes new reliance stock and both were independent companies they were a spinoff and as of october first of two thousand and two they were independently owned although as a practical matter they shared many of the same investors because it was a spinoff and many of the old investors bought the new company but yes they were legally independent companies as well as subset of stemberg thirty september thirtieth october first as a dispute in the record well but i didn't know which one either so from two thousand two thousand and one is it true that no director manager employee of c s was concurrently a director manager or employee of our yes that is a very misleading statement if what it removes is the word office or very carefully there was a common officer in two thousand who was an officer at the treasurer of both c s and harry s at the same time are kilbride so when the c s made this argument to the district court they cleverly left out the word officer because there absolutely was commonality there well i understand so as i understand it and i looked at all these briefs so it seems to me there's no director manager employee but there was a trader there was a common officer and in addition any other officer besides the treasurer overlap during this two thousand two thousand and one period of time they didn't overlap at the subsidiary level but many of the officers of c s were also high level officers the reliant parent will also help positions with with ari s so the connection was both are yes and c s were managed by the top executives of the company who work together at the reliant parent level so for instance mr mcclanahan in our briefing was the chairman and the director of c e o s he was also a high level president of the reliant parents and he was in charge of the any energy distribution group mr kelley who was the secretary of c e o s in our us not concurrently but during the relevant time period was a general counsel a lot reliance and we demonstrated in our brief that there was a lot of overlap of that kind including amongst steve let better who is the c e o of the overall company ste see as ever engage in proprietary training on its own trading on its own it somewhat depends on how you define that it did again just swap trading but it wasn't the kind of trading that our us did which is on the was i understand it from the facts c s would sell the gas and sometimes sell i'm in long term contracts and might engage in some trading on the market simply to offset those long term contracts that it had for the sale of the gas but it wasn't really the same kind of trading we're talking about that was engaged and by its parent it was engaged by our yes the trading subsidiary right the way we did c s ever engage in any conduct which is alleged and against the other defendant other than simple this sale we alleged in our complaint that the reliant energy function is one unit to try understand that but i understand your allegation but honestly your allegation really leads me only to say that what you're saying is because we have this case copper wailed that whatever this is consider whatever the parent does the subsidiary does but i'm trying to figure out is is there any evidence that they ever engaged in any conduct  alleged against the other defendants other than just the sale of the gas that's you say is part of the conspiracy and i agree with your i mean i know what your allegation is is or any other conduct except the sale of the gas that was their role in the conspiracy was the sale of the gas they did not participate in the round trip trading the false reporting and they weren't doing the coordinating which was the parent but their role did they ever report gas prices there's a dispute a fact about that it looks like the reliant parent company reported some of their sales but it was their policy according to mr sullivan not to report but others may have reported in there on their behalf ok th on one twenty three to one forty one of the record because a lot of the evidence regarding the overall conspiracy its intent objectives and results was undisputed by c e o s and in particular allegations of conspiracy and record one thirty five to one forty paragraph sixty two to seventy one and i reviewed that evidence for the court here reliant publicly admitted to roundtrip trading it paid more than one hundred million dollars in fines and settlements with the c f t c f e r c d o j c c and its own shareholders that's a record one thirty seven to one thirty eight paragraph sixty six jerry foods in areas trader pled guilty and sentenced to a prison term of more than four years for false reporting to manipulate gas prices that's record one thirty nine paragraph sixty nine  product at prices fixed by the other reliant companies they were essential participant in their liability must be viewed collectively but even if we lose in the copper world argument on this record there's enough evidence to conclude that c b s was unknowing two one forty one of the record and what we demonstrated was that reliance manipulated prices with the intent to sell gas at manipulated prices c s was the energy that sold two hundred million dollars of overpriced gas collected the overcharges from the sales and distributed the profits t company we put in evidence that c e o s is top officers and directors were part of the same group at the reliant parent that instructed traders to false report and instructed traders to round trip trade and certainly they were part of the group that was receiving the red flags that were running up and down the company when the accounting department the risk management part and rent and the controllers department were all saying these billion dollar trades were buying and selling or selling and then buying seem to lack a legitimate business purpose i guess time understanding what evidence we have that c e o s anything different than any other third party who was buying gas from r e s c s was a captive company that b inflated prices higher than even the other companies that bought from and sold into the wisconsin market my time is done which i can answer the question instead and frankly i have i can give more time thank you i would appreciate that so c e o s played an essential sales role our argument is very simple that you don't fix prices for a product unless you intend to sell that product at the prices you fixed but q but be fair and this is the extent of my question be fair they were selling this product not only to c e o s because c e o s and by hundred percent they were selling this gas to a the c d and they were selling at a profit too and all c e o s did was the same thing that a b c and e did and yet simply because the owners and directors their owners and directors knew they're in the conspiracy it is not true that our e s o gas to other resellers in wisconsin the record shows themselves they didn't sell to anybody else our us was a wholesaler didn't sell the customers in wisconsin there's no evidence in the record that anyone other than c s was selling this gas to wisconsin consumers c s was the outlet because only only c e o s bought it for wisconsin then your then your claim survives i mean they are certainly that arias sold this gas someplace else certainly they had other sales but they are not part of this lawsuit simply because it was a constant buyer i mean south carolina gets the gas should they be able to get in on the same theory well the evidence in the record focuses on wisconsin because wisconsin case there were other than there were other reliance still some serious in other parts of the country in no question areas probably sold to them too under the same scenario but in wisconsin which is the antitrust case we have alleged c e o s sold two hundred million dollars of gas it was the outlets that are yes used that reliant used to sell all the overpriced gas last question is very simple because they were part of the argument is that the real line and he didn't make a buck on this record there's no evidence that any profit was realized until c e o s sold gas to wisconsin consumers that was c and so again back to my same question the only way you get yes is because part of the whole and what i'm telling you is that there's nothing on the records to say what are us dead at that it's all gas to anyone else i'm guessing that it's all the other reliant sales of sirius in other parts of the country billings you made some mention earlier on even if we don't apply copper world we should reverse because the c e smith's question is mere knowledge that manipulation and competitive manipulation is taking place by a person in the chain of commerce from which a buyer takes product and sells it and money done is that enough or is under section one or does it have to be purpose under wisconsin law knowledge and an act in furtherance is sufficient to establish a liability so where's the evidence that c e o s officers directors employees knew arias was manipulating giving the citation the chair and the overlapping roles which is the foundation of what i'm about to tell you is that are one thirty three to one thirty five and those are those of the answers to and to request to admit under facts yes and your request to admit undisputed facts have citations to the record they did and in you to deny those undisputed facts a clean objection claims they are relevant are not denials of you understood facts that's correct thank you very much right and my point based on those facts i want to tell you how that knowledge was imputed to the company c s and that was sorry that the reliant executives at the highest level were telling traders to false report and round trip trade that group included david mcclanahan who was chairman and the director of c e o s and included mr kelley who was seeding these reports of these billion dollar trades that leap off a financial page because they're buying and selling gas in the same volume at the same price in quick succession they were the people receiving these consolidated reports where these trades were reported and mr kilbride who was the treasurer of both c s n r e s was all over this there were alarm bells being raised all over the company by the accounting partment by the controllers department by the risk management group that these trades seem to lack a legitimate business purpose mr kilbride in that department acquired that knowledge and other wisconsin law the knowledge of the officers of the company are imputed to the company constructively so c e s knew what was going on because it was managed by the same people who are directing other parts of the company to do it we think you pass your time thank you thank you very much police good morning please the court my name is mark roback and i'm here on behalf of defendant apple leaser point energy services now i think it's the court has already explored c e s is not like any other defendant in implicated in any wrongdoing by any of the government agencies that investigated is going to make the point that was made by going to were made by mr billings and i ask you a couple questions on that and this is the first point do you agree or disagree with mr billings the center that copper weld attributes the purpose of the conspiracy to see this through the common ownership of i'm sorry of our brief sort of spells out the ownership structure but but one that the key point of that is that c e o s was never owned in part in whole at all by either of the reliant defendants in these cases there was the common ownership during the business separation of the old reliant but there was never any ownership by either of the defendants in these cases at all  period so c e o s was affiliated through the old structure with r e s and r e s was the the operating subsidiary that was involved in the allegations that are part of the lawsuit list define same time that are in the s was indirectly owned by the old reliant one hundred percent for part of the time period one hundred percent and what two thousand and one or two to two thousand and two beginning on january first two thousand and one it changed so during two thousand alright on january first two thousand and one there were public stockholders for a portion of all the real love between present yes and then new reliant was formed that was put in percent of arias parents correct correct but but your honor i guess the the key point here is i really don't think that matters because under copper weld i think they make too much a copper weld and the ownership structure here because when you look at copper weld copper weld very specifically was looking at whether under section one the agreement among parents and subsidiaries could form an agreement in restraint of trade that's what copper weld looked at was is this an agreement in restraint of trade and they said also and i think this is important because this this also goes to the lenox decision and they said however this rule applies to section one because of course families of corporations can still be liable under section t monopolization in other words there can be an agreement to monopolize which would violate section two but an agreement in restraint of trade would not violate section because parents and subsidiaries are engaged in competition with other pick it's not a restraint of trade and they talk about it also in american eagle as there may be a gap that that some people think congress should have filled but that's not that's not the case the case is with parents and affiliates it doesn't make sense that they can engage an agreement to restrain trade no  interest and suddenly no unity of interest between c s r e s and reliant holds because of a complete unity of interest and yet it seems to me there's a unity of interest between c s r e s and reliant i mean to the whole  would not have happened if it hadn't been for if you will c s as part erin well i disagree with that completely on her because because the evidence is actually that c e o s operated independently and they bought gas from lots of suppliers and they bought gas at the lowest possible cost and so that there wasn't really a unity of interest is as you're on as you're on or suggested earlier c e s was simply a retail supplier that was buying gas from wholesale sellers many of them are yes was one of them but but i think the key point there is that here there is no evidence that c e o s even knew of the alleged misconduct that the players for ferde what about what about this what he just talked about and reliant and having that david david mcclanahan david mcclanahan you kelly and mark can write and kilbride getting all the information well the evidence isn't that they got the information or that they knew what was going on there is no evidence that they knew what was happening during this relevant time period there is that it's just it's just not there your honor counsel opposing side cited one thirty three  my view is when you look at what those allegations are and what the underlying evidence they reference is conduct it's contact by ari yes it's not conduct by c s and they trading yes yes i do i do because because first off the record of a mr sullivan was that they acted independently second off the evidence that they cite two is not evidence that any of those three officers knew about the alleged conduct it's just evidence that the a conduct occurred which came out after the california energy crisis after all this this happened and there were investigations of what was going on that's what they're referencing it's not reference that any of these officers knew about it it's only referencing evidence that it may have occurred on the reliance side there they they leap officers are there for there are common officers you disagree with that no sir so you agree there are common office and i do but you do you not all do you also disagree that s did or did not fulfill last if you will element of the conspiracy in other words that the gas sold by c s bought from  arias was really the only way to get the money into the corporation and i disagree with that completely k y because c e o s when they bought the gas reliant they were buying it at the alleged inflated prices it was it was and yet there was only way to really make the money is the final sale at the driven up price which is exactly what c s provided them by as if the drive the price and sell it and give all the money to us that's the end of this conspiracy that's the last if you will leg of what he's alleging i understand that your honor but ari s clearly did not depend on c e o s to sell gas because they sold gas all over the country they wouldn't even be here if it didn't originate in california with the energy crisis and the following up investigations it just so happens that c e s was a retail seller of gas to customers that didn't buy regulated gas from their l d c that they and there are a bunch of companies in that operate in wisconsin just like that are yes wasn't dependent on c e o s in any way shape or form to sell gas it's just it's just not they weren't and c f i was no i guess i'm trying to figure out how they weren't if in fact they're the end result of the to get the money in from the conspiracy to raise the price i'm having a tough time understanding how they word the last leg of the conspiracy knowledge or and the knowledge imputed by the common officers who know about it well it was the last leg of the sales process it certainly wasn't the last leg of the conspiracy and if c e at all there was no reason for the conspiracy unless they could make the sale of the gas the gas sale getting the money in for raising all the prices up is the only reason you do it and c s provided that you're saying there were other people who could have sold the gas that would have sent the same profits up the chain right yeah and the present that they have common ownership that they have common officers that there were others here are but but the but the profits the alleged conspiracy  people ari and c e o s didn't buy all their gas from r e s they bought their gas from lots of people so it was just serendipitous that you had these companies within for part of the time period the same family where there was a retail seller and where there was already s so our us for example made money if they sold the gas to one of the other defendants or if they sold the gas to enron who was an end customer it was just our us was in the wholesale business buy gas and resell it not to retail customers so it didn't depend on a retail company to make profits assuming the alleged conspiracy is  is is true i'm just taking those allegations it just needed to sell the gas that's all it needed to do and so c s is no different than any other retail provider and the evidence in the record what the judge was presented with was that c e o s operated independently of reliant didn't know about the misconduct didn't depend on reliant and that they were completely independent that is the evidence that was presented to the court and is not rebutted it's in mr solmes deposition sullivan stepha's ition it says in his declaration and what they do is present evidence of our e s misconduct without ever connecting the dots to show that c s even knew about it they simply fail to connect the dots thank you very much thank your thank your honour's i wanted to snake for quick points the first is i think the panel understands the ownership structure but if there's any doubt look at page nine of their brief and circle old reliant on the top it was the parent that ruled all second their disputes of fact up and down this record including many of the things that mr robeck just said he said that c s was just buying at the lowest cost but we have those purchased records in the record they were exhibit d to my affidavit m d l two three five five dash one and those records show that arias was often the highest cost there were many other lower sellers but c e s was still buying it third street rollback tries to characterize the wrong doings occurring at the areas level only that's not what the record says the record says that reliant was involved it's the highest level and that's one thirty five to one forty of the record with respect to dependence there's another disputed fact about that we put in the record at one twenty five to one thirty one that the companies were very dependent on one another all they offered in return was mr sullivan's testimony mr sullivan was an office manager in minneapolis  reported to someone who reported to something reported to c s as officers and directors he was a low level employee he did not speak to the officers and directors he did not review any other documents which were never polled and he didn't do any investigation as a thirty six witness into the knowledge  participation of c s officers even though those were noticed topics the court didn't ask many questions about the rule fifty sixty motion but the point i want to make is that if you believe there's not enough evidence to get to the jury on the issue of intent how would we get that evidence we deposed the officers  s marketing services and training company thank you your honor david frederick for farmland i'd like to reserve three minutes for a bottle if i could please this case concerns the application of the nymex class action settlement to release  individual plaintiffs antitrust case that was pending at the time of that class action settlement we asked this court to reverse the district court's dismissal of our suit for three reasons first by its plain terms the release does not cover our claims second our claims could not be in compassed by the settlement because they arise out of different facts the identical factual predicate rule applies to bar the settlement from releasing our claims and third if you are to disagree with me on either of those two points the due process clause is implicated and the settlement cannot borrow claims consistent with due process because class counsel did not adequately represent farmlands interests and then i next suit if i could go back to the release language and give the court the precise way that we get to our conclusion that the district court erred we start on page two ten which is the language of the release and then i mix settlement and that language by its plain terms releases only quote claims then dot dot dot arising from or relating to trading in ny max natural gas contracts that city are to ten arab planes arise from bilateral physical gas sales if the drafters had intended the defendants interpretation they would have omitted the word nymex and just referred to quote natural gas contracts clearly the nymex class settlement was intended to cover only those transactions that occurred on nymex and they said so directly in the release the word claims also is doing or what do we do with the language and i'm just quoting it here relating to and then there's a later phrase they're in including without limitation they had i trust laws those that sagansky has to relate to the claims arising out of trading in nymex natural gas contracts yes i'm trying to figure out why it is airplanes do not arise out of contract or stand you are getting out because you say it's not nine mix but when i read the phrase and the phrases relating to and later on in the same phrase says including without limit patients state and i trust laws i guess i'm trying to figure out why that doesn't say it just is it doesn't just have to be  reason is that if you had a nine max contract judge smith that also implicated a state anti trust pro have dish and this release would cover that airplane even though it is a state antitrust claim does not arise out of a ny mex transaction our transactions all were bilateral physical cash transactions farmlands a company based in kansas that was buying physical gaff sometimes it was buying it on the cash market in the moment and none of the purchases that are at issue in error case arose out of an imax contract so under your interview i understand it then what you're saying nymex settlement was struck is the canon that the class release cannot go beyond the capacity of the class representatives to release claims there were no allegations of physical gas sale manipulation in the nymex class action there were no class representatives in the nymex class action who represented the interests of buyers like farmland and so they can no construction and this comes from the consolidated edison case that we cite in our briefs and also importantly the superstar spud's case that judge friendly wrote for the second circuit is this notion that the class representative can only release what the class representative represents you cannot expand the release in a class action that goes beyond what the interests of the class are and hear what the defendants are seeking to do is to use a broadly worded release and broaden it even further to encompass transactions that work that could not have been represented they had attempted to have been represented that would have violated the scope of the declasse representatives capacity and the identical factual predicate rule because those facts go beyond what the class representative have the authority to release  also deal with the sales and physical natural go yes that's also wording at our two ten but the important words judged by our quote physics natural gas contract and air point is that our contracts were not nymex natural gas contracts that gave rise to these allegations of thought for their own use air company was a company that bought the physical natural gas and used it to make fertilizer and used it to feed livestock for purposes of that her thirty six deponent testified that farm live fairly frequently purchased nymex contracts as a hitch that's correct but those hedging contracts are not implicated in this case because what we are talking about here is the manipulation that affected our natural gas purchases now importantly if you look at the claims form and this is at excerpts of record page one of three there is no reference in the claims form in the nymex class satele meant to any losses that occurred from physical natural gas sales or physical gas sales wholly apart from nymex transactions every place where a put fugitive class member would be required to fill out what their losses were had to do with an imax transaction not the kinds of transactions that farmland entered into and why is this important because judge at page are two  eight when the district court in nymex approved the class settlement the court said there were quote no competing cases our case hat was pending at the time that class action settlement was struck and for the district court to say there were no competing cases i think is very clear evidence that our case was not intended to be in compas within the nymex settlement the defendants were the same defendants in our case as in the ny mex by and by me virtually all of them were the same they obviously had an interest in including ara case if they thought it would have been encompass by the settlement release they didn't ask for it to be included nor did they ask the district court to reassert jurisdiction in the ny mex in order to sweep our case in so i think it's very clear that what the court in nymex was dealing with was nigh mechs trading manipulation and not the kind of manipulation of the physical gas sales that harmed farmland and caused it to go into bankruptcy now if i could go to the second point which is the identical factual predicate rule bilateral sales are different than the exchange traded options contracts that were at issue that we use them the time of all right i'll say the colleague's approach to the case which is to say that the physical contracts are sort of a separate universe from the financial instruments that are traded on nymex of these things so that zynga contracts and future contracts that were traded through the nine mics are different from bilateral contracts and written to by users yes exactly and that's and that's what i'd like to respond to and  the shortest answer i can give the court is really to return to the e r to sixty three through to seventy one and that's the deposition testimony of the enterprise risk manager and to look hard at that testimony in light of the representation in the approach this morning because the two are irreconcilable the first thing we see when we look at the testimony is that the effective price the cost of the gas the cost of this physical him put in the risk managers words is the nymex transaction cost and what that means and the reason it's so important is that if that nine x price was manipulated and in fact if it was higher than it should have been then farmland indeed suffered a loss but the loss is measured by the distortion on n ex and that's precisely what the nymex class action was there to allow recovery for and so there is no separate injury here for a company like farmland who was a hedge or and who said they hedged all of their purchases so let's go through this in a little more detail so the court can really see that that's what the testimony is and then we'll see how it really answers the process the identical factual predicate all of the issues that they have raised including the plain language of the release so to see that the effective cost of the input is the nymex price look at the example that farmlands witness gave he said you know we know in january that we're going to need a certain amount of gas in july so we're uncertain what the price will be at the time we need to do this physical gas transaction in july so to have that certainty we buy a futures contract on the ny mexico change for the amount that we know we're going to need and he says let's assume that's two twenty so i buy the nymex contract for two twenty per million b to use and then we know that's going to be the cost of gas to us in july he specifically says on page two sixty six lines five through nine that be effective cost of the i us will be to twenty and that and then he goes on to explain it works out that way whether we end up in our physical trade paying three dollars so the cost of physical gas went up  because whatever we pay more for the gas for the physical gas that's delivered to us that extra price is offset because we settle our financial trade for the same amount higher when we settle out on nine x same thing if we end up paying less for the gas than we planned a dollar fifty and his example we still end up paying to twenty in effect for our gas because we're going to lose that seventy cents when we settle our financial it's three dollars we exactly and he's very clear in saying that if he are to seventy he says so we've got eighty cents in profit from the hedge which is what locks in that two dollar and twenty cent price for us that's line seventeen through nineteen at our to seventy and million them paying the nymex future price not the physical price exactly that is the cost that is the cost of the gas to them that's supposing that every physical gas contract is hedged that is so in there there's not material evidence to the contrary in this record they never made an argument that they weren't offsetting and when you read the testimony that is in the excerpts of record you see that that was their approach they were trading on nymex to hedge their physical purchases and you know if they weren't doing physical purchases then they weren't hedging he says that specifically we take the hedges off when we don't need to do that yes it's in our brief your honor and and i will look at the moment for the page but it would be in that same two sixty three to two seventy two place in the  so this is this is so critical because it doesn't mean they couldn't have been injured ok because in his example for exam he's paying two twenty now if the nymex is manipulated and you know the non manipulative price would have been two dollars in january well then they're paying two twenty so it's it's two twenty instead of two dollars so it's a twenty to we know in fact i noticed this just preparing for this morning if you go to e r two fifteen you can see who opted out and ian j gallo opted out jay gallo brought a separate lawsuit for its physical purchases which in fact reached this court a court decided in j gallus case at five o three f third ten twenty seven so you could opt out if you don't want to be part of that settlement otherwise you're in the settlement and the precise claim of this cost differential paying too much for gas for a hedge or should at least very appropriately could have been hedged by farm and i don't think so your honor i understand the question but this is an extraordinarily broad release we're not relying on the broadest language of it frankly this morning because we think presented that we don't really have to confront about you know the language about the state and i trust claims or other you know relate to in any way type of arguments if there was a materially there was a limit to the hedging he'd be wouldn't farm land the untitled to the damages suffered under the be laid price under physical contracts which were not hitched i certainly possibly the court would have to work through the other language in the release and if they did and the court would decide yep that or that language doesn't pull in that then yes then our argument doesn't work for for those transactions that are but i think there's there's interest or they can pursue those they they could assuming the court were to reject the other arguments that one would have if you had somebody who really was just a partial hedge it was a certainly if it was demand a mess if you really weren't hedging or you had one trade in your life or something like that then maybe you would say look this is not really directed at that although but  here when you have the enterprise risk manager come on and say this is how we purchase gas you know he says our transactions went hand in hand this is we wanted certainty so we hedged all of our physical purchases or at least he doesn't identify any material amount that they didn't with the ask i don't think he was specifically asked that but our my colleague really doesn't deal with this part of the transcript  because when you when you see what's going on here you see that their claims arose squarely in the nymex settlement and they got notice court in the ny mex class they were represented by cornerstone propane and cornerstone propane was a marketing company at e r two five zero the first opponent for farmland goes out of his way to say we bought gas not just from natural gas producers but from marketing companies what marketing companies do is buy physical gas and then sell physical gas and they have an incentive to hedge is well if they want to lock in the price at which they can sell it six months from now they will put on a hedge now there's no robust factual record about cornerstones physical gas purchases and whether they were hedge or and so forth that argument was not raised below we didn't have the opportunity to develop it but we can see from e r to fifty we can see from cornerstones description of itself in the complainant brought we can see from judge morrow in the second district judge morrow's class certification order footnote six defines hedge part of the class definition for the settlement and the references in the notice in the settlement claims are replete with references to headers we've cited them in our briefs and headers in fact had to give additional context for their on their claims forms precisely so the court could understand their physical trading positions so this is set up to allow hedgers to recover this is no different than the walmart and the rains pos develop decisions of the second circuit in of this court where you have somebody trying to challenge a settlement a large settlement hundred million dollar settlement in this case  after the fact bringing a collateral attack i mean the most material difference is at least range pasta bella objected to the settlement in real time in the second circuit before pursuing it separate action here really farmland had the keys it got notice could opt out bring its claim you know for all of its physical gas purchases like the n j gallo did or stay in submit its claim form what it can't do is not a doubt stay in the class and then try to say that somehow its physical gas purchases were wholly unrelated to the hedging thank you is not a dollar not one dollar in the nymex class settlement went to anyone who purchased physical gas and they can't show that a single dollar was and if you look at the claims form there's no place for a purchase or a physical gas to report where they would have gotten any damage from the nymex contractor you read if the nation that you recovered would have would have released damages that's point one point two is they have taken the testimony out of context because the farmland opponent said there was hedging but not hedging the bulk of it on the nymex markets at all it was hedging done with other financial institutions and so we now have we don't have any argument now anymore that the release was intended only to cover questions that would be disputed that is subject to trial the district court decided this case is plainly on just the plain language of the release which my friend spends very little time trying to defend he spends most of his time arguing that the deposition testimony somehow swept farmlands activity but that's not how the district court dismissed this case it dismissed this case on the suppose it bret of the scope of the release that was said to encompass us and there are no damages in the nymex that would cover us for purposes of records citations i know the court views that is especially important the majority of farm lands hedging was not on the market that's not in the excerpts of record prepared for this court but it is exhibit eight sorry exhibit ten two error summary judgment motion in the record below there are also citations at two sixty three of the excerpts of record and two fifty three that indicate that not all of farmlands transactions were hedged so there were they were engaging in physical gas purchases that were not protected