with bankruptcy trustee if the trustee who uses software of b m s bankruptcy management solutions they have to deposit all of their money of their estates with rabobank and with no other bank then exclusive dealing arrangements own limited didn't need for rabobank to compete for deposits of the trustees and that lack of competition at least limited the need for rob a bank to pay interest on those bankruptcy deposits the district court ruled that this exclusive dealing arrangement did not violate section one nine hundred seventy two one it made that ruling because it found a section nine hundred seventy two applied only to tying arrangements which involve more than one product and did not apply at all to exclusive dealing arrangements to district court so it would seem that if congress wanted to require two services out of section one easy it would have used the word additional rather than the word other the other the word other in our understanding means it comes from word other you would probably have the same you would probably have the same meaning i'm sorry i didn't mean to attribute that point to you but i agree that the word other is for all practical purposes redundant it's like if you use the word in order in a sentence that usually means nothing but i think the key point to understand is is that you can't say it is an ambiguous given the use of the word additional and the mere fact that you could best case a to ation for rabobank term the word redundant doesn't mean that that makes it the only interpretation i mean the counter example is is king versus birdwell where the supreme court last term said that you know the words  exchanged by the state just didn't mean anything and that was ok now if you look at the context of this statute it is almost beyond dispute that deals with exclusive dealings arrangements now the key point here is the senate report the senate report for this legislation specifically states and this is a page twenty of our t and exclusive dealings which is one and that's exactly what this court said in the davis case that this statute applied to now be the purpose of the senate or the purpose of congress in passing this bill as demonstrated by the senate report demonstrates that it was both meant to address timing and meant to address exclusive dealings and the senate report at the pushing for you page twenty one of our brief says that the purpose of this section is to eliminate anti competitive practices which require bankruptcy bankruptcy cutbank customers to then there are some words dealing with timing and then a continuous rephrasing from dealing with other parties in order to obtain the bank product or service they desire so the the senate report seems clear rabobank to be right it appears that the senate report must be wrong and in addition the opinions of this court will not date you aren't you reading out of the examples which are set forth in one way and i believe repeated in one c are not repeated in one the and this is only a one each now in pain before moving on in daniels the court set it quite precisely this is page twenty of our main brief this court has construed section one nine hundred seventy two as prohibiting exclusive dealings practices those that attempt to prevent customers from dealing with other banks so given the davis case and the daniels case for rabobank to be right for at least four sitting judges  a applies to a tying arrangement where there are two products ok and for those types of situations you deal with the four safe harbor as loan discount deposit  different animal either it's nice isn't exclusive dealings type of contract where if you take a service from a bank the bank in our view cannot wofully prevent you from going and getting no dispute about that you are right reading that correctly but that's not our case we're not dealing with a long transaction or credit transaction we're simply dealing with a deposit service arrangement is that deposit money goes in and out for one reason or another or is that just something to expenses of the estate such as professionals or some money in and out it seems to me that under and maybe i'm looking at from a practical standpoint it makes much more sense to have one depository that's why they do this now that th have all kinds of other things to say that's for bidness seems to me that upset would sound to me like a reasonable bankruptcy practice this isn't big money here in this particular thing well but if you're out of let me just your last point first this is big it two billion dollars where in it in collectively banks of you know that's who was the banks that well no your honor it actually in practice isn't a lot of banks because b m s has fifty percent of the market they used exclusively robin bank the other competitor epic solutions had three or four banks that it was working with and a small competitor had a couple of banks it was working with so you'd have to billions of billion dollars concentrated in no more than a handful of banks now the other point your honor make was it would be a good practice if you have money coming in and going out to use the same bank it might depending on the st but if you have a situation where two million dollars or so comes into the estate and rob a bank is is paying no interest on it it very well makes sense to pay it take one point nine million out of that wins is getting a fee out of the estate maybe all of it maybe some of that and then the creditors lose because the creditors are not getting the interest which is which is which which rob a bank should be paying for that should be part of the  one can do that well i believe it is part of it was says you can't you have to pay interest on it because it now doesn't say have to pay interest on a deposit that would be that would be a different law but what this law does is to encourage  interest is to say that one bank taking in a deposit from a customer can't tell that customer that they have to deposit all their money at their bank because if they've done that then they the limited their need to compete for that money and their need to pay interest so we really do have a law which which provides which through competition would result in the payment of at least some interest on these amounts and rabobank has sidestepped that w trustees doing what bankruptcy court to do and write a thing else that did this i said i didn't know a lot about this until i looked into it closely it seems to me the key to your honor's analysis should be the senate report the senate report says that you cannot have an exclusive let me start with the big picture on this statute and what it means in the context of a practical arrangement between these pardons what happens here and what was alleged in the complaint is that a trustee who's in charge of running in the county bankruptcy needs a bank and certain software in order to facilitate them doing their reports so they contract with a company like b m s to provide the software th s contracts with the bank and that bank has to be approved by the u s trustee has to abide by particular regulations and has to be compatible with the software that b m s is running in order to serve the trustee in this particular statutory regime this is not an overreaching replacement of the any trust laws for banking what this is it's all about tim timing and one is a negative tie meaning that there is a condition that if you want this banking service as a condition to that service you cannot obtain another service from a competitor and if we look at the words of one b the word other does have meaning because it's been joined there with a competitor an other product with a competitor and the word obtain or not obtain there and if you look at rau versus colonial bank obtain meets purchase and they talk very much about how that means perch you ca purchase another product from another bank the plan for appellant here is admit it there is no other product involved here there soley this product there's no competitor out there there's no prevention there was no condition to that particular a savings account or depository banking account for the bankruptcy what they're saying is is that b m s has a relationship with the bank and the way that it's set up so that it runs efficiently for the trustee is that they want you to use the bank that they've gotten approved by the u s through c that's agreed to abide by the regulations and that is compatible with the with the bank so that they can all work together that's how it works there's three contracts in this particular case one between b m s and rob a bank one between b m s and the trustee which is cited in the complaint and that's the one that says you will use our bank unless you object and then there's a deposit agreement between the trustee and rob a bank for the depository banking account let me ask you this could there ever be a excess valid exclusive dealing claim under the one nine hundred seventy two involving only one product or is it your position that more than one product or service is always required the latter your honor this is a time statute and the case law in the seventh circuit clearly says that this is the timing anti tying provision if you look at mid states fertilizer and even the daniels in the davis in the mccoy case that are cited by the pla appellant it's an anti time type of statute that's how it works if you're talking about exclusive dealing in the sense that we know it in and i trust that's not covered here that's covered under the schuurman act in the claim that and this plaintiff knows that because they've sued b m s under the sherman act and other actions but here because this banking statute has a lighter burden for the plaintiff they want to get the bank than the one nine hundred seventy two and they can't do that unless they show a time claim let me ask you just something solely on a different topic was interest paid on the deposits interest was not paid and why was that that is a business arrangement your honor that is that's something that goes on in the the of the business people but let me just say this but the bank has to do here and and i know that the bank does not make a lot of money on this if that's what you're asking but the bank has to do here is go through another whole layer of regulations it has to abide by the bankruptcy rules as well as all the banking rules it has deposits going in and out of the accounts many of these accounts are not very big there's a lot of administration work that goes on with this and what the bank was anticipating was holding funds with interest rates going up as we all know in this atmosphere interest rates have not gon put on the glasses so i can see somebody knows traditional banking practices are specifically excluded into the case law from section one nine hundred seventy two and that's really clear if you read the cases they say well ninety section one hundred seventy two covers these various acts but it was not meant to cover just traditional banking practices it was meant to hold the banks back from exercising some kind of power by conditioning these particular products with something else with some kind of power in the type product so if you look at the case law none of the cases that are other cases are on summary judgment and all of them all of them look at the bacon practice in a very practical manner and ask is this a traditional banking practice and in this case that's what this is this is how it let me just say to small points one is about standing and who is in the shoes of the person best to bring a claim if there was a claim here and that is analyzed under the normal section for the clayton act and the best case to look at that is mid state's fertilizer and it talks about the role and specifically to this case it talks about a creditor in a bankruptcy and the case was narrowed to one in this particular exception and rather since colonial bank talks about that's a twelve b six case talks about if there's a a at least the interest so it's a it's a creditor of a bank or a creditor in a bankruptcy complaining that there should have been more money put into the bankruptcy as a result of the fee dollars and somewhere with the s b s state was contribute the state the a state was counted as part of that two billion dollars so that all trustees not said what the target is to to try to find a class that would be able to c did not violate section one nine hundred seventy one seventy two one he then rob a bank would have had to compete with other banks who were also approved by the united states attorney for the money that they had a state realizes that those bankruptcy trustees need software so rob a bank and b m s get together and they decide b m s is going to make all the bankruptcy trustees go to rob a bank robber bank is going to pay b m s a referral fee for all our wing it to take in without any competition all of that money that the bankruptcy trustees  obvious proposition so how much is this interest well which is it the interest for mcgarry would have been in the neighborhood of one hundred dollars that's not why we're here the reason we're here is this is happening across the united states with every bankruptcy at stake and the sum total involved here is going to be in the neighborhood of two billion dollars that banks have as a result of these exclusive dealings arrangements i wish nobody's being paid interest and the banks extract in  you said there i'm sorry you the first time you said that yes yes you did class action yes ok because look no one no one is going to bring a claim now i understand ok ok but see we're here because this is a nationwide involving every bankruptcy a state it is a serious problem and it's this is the first time that i'm aware of that anybody history this in our companion case anybody's challenge this and it seems that a clear violation if if the senate report and davis and daniels are correct then we have an exclusive dealings arrangement if this is an exclusive dealings arrangement with gary he's been injured by yeah because they have been restated received a reduced distribution from the bankruptcy at stake as the result of rabobank failure to pay interest and that's happening across the board did you did their motions one to compel arbitration and two to dismiss a couple of days before we responded to the arbitration motion in writing we thought we were going to get a briefing schedule on the motion to dismiss and judge shater dismissed it at the initial status  without any briefing and giving me maybe a minute or so to argue i mean i'm not saying that there was any damage as a result of what judge shader did because we're dealing with a a legal issue here either section one hundred seventy two one he covers exclusive dealings arrangements or it does not an additional argument in front of judge shader will change that result that's up to your honor's ok thank you