with respect to flourish and although one might be misled by the fact that the advertising content at issue in this case and the advertising content at issue in the case contains similar misrepresentations and a lot of claim  more than simply claim an issue preclusion the district court properly recognized that this case brings new and different allocation allegations that were not and could not have been brought in the jiffy lube case the defendants recognized this as well precipitating their belated submission of factual evidence supporting to address the merits of those new allegations for the first time with their reply the district court's analysis should have ended with that recognition that this case brings new and case having determined that there were no new issues with respect to new allegations faced on its previous judgment in this case but on the merits even though that wasn't the scope of the motion and there had been no discovery in this case that on the merits those new allegations failed in this respect to the remainder of the case the issue of whether jiffy lubes advertisements caused damage damages barclay litigation of that portion of the case note that those those declarations were submitted for the first time on a reply no factual issues raised in their motion and and so the plainest response was properly limited to the legal issues of claim an issue with susan and a comparison of the complaints franchisees radio advertising first of all it only relates to advertising at all to february of two thousand and two which is not the entire time period at issue in this case it doesn't address advertising relating to all of the statements at issue in this case and in fact only addresses to advertisements that these facts i see created and makes no representation that the operation addresses all of the issues that all of the advertisements that these franchises authorized there wouldn't have a clue that's not going to cut it so i'm not quite sure i understand the significance of the distinction in this case as to who placed the ad and maybe they placed separate ads it's both of those issues it's the same issues outside but it didn't say and i've now i lose track of what date is what but it didn't try to limit itself to the for the particular dates that were at issue in the loop so presumably it covered whatever the listener might have heard placed in a more hypothetical fashion would you have heard it on the radio i wouldn't but i'd seen on t v i surely would have done this i mean that's just that's impossible but we are dealing with a different audience here we may have a whole different population the survey was conducted improperly with respect to this limited pool of radio advertisements that happen to have indeed the same content but with respect to causing damages and secondly consumer behavior changes over time so the to the so when we look at what is the nucleus of facts at issue which is your loop it is a jiffy lubes authorization of radio advertisements during a certain time period the transaction on your face the facts at issue in this case are radio and television advertisements independently authorized by different parties over a different medium reaching a different audience over a different time period so we have an entirely distinct nucleus of facts here which means that we have a no basis for that in the complaint that's why we initially moved just against the complaint the defendant excuse me the planner said well there are a that it could potentially have a greater impact so you might not be able to cause demonstrate causation after a certain period of time but later you got the greater impact in maybe you can develop evidence of causation is the way the time period give reason not to over and over and over again well i think respectfully are if they're playing the same ad over and over again they would clear and they're seeking damages for those ads those ads are clearly already litigated by the race  really haven't gotten this message about jiffy lube after the first time period but you play it for another year and i got people start reacting differently and are affected by it and we can develop evidence of causation that the court really shouldn't develop or rules based on well i think you're exactly right that it's speculation the franchise agreements have never been provided they were not provided in the jiffy lube case the subject of the discovery question this case that have not been provided the defendants offered no franchise agreement language that would support a consequences that that gives rise to a new claim that is not precluded here we're not saying that yes that aired in time period one i've continued to cause us damage alone we're saying it continued this advertising campaign and that constitutes new conduct giving ri