there are three points i would like to make here this morning first that you are not bound by the panel's unpublished non presidential decision and twelve dash forty three forty two we stop on that one and why's that because they pale in twelve there's forty three forty two only had jurisdiction well under twenty twenty eight us in twelve ninety one but for the eleven plaintiffs who had proceeded to final judgment and the final judgment that they obtained through fifty four  some of that final judgment was binding on only those eleven plaintiffs in that case and not on the sixty three if it came to this just as an aside i guess when there was a liability over any of the sixty three what happened is on the on published decision was binding on only those parties in that appeal who were those parties those parties were forward and the some of the plaintiffs or defendants go up on with their issues and because they have a final judgment as to them and we're going to sever them from everybody else and it yes it is going to be this case where we the court of appeals as you said goes you are going to have to deal with this potentially the same issue more than one time but that is the price you pay for the for the economies and the benefits that will fifty four be allowed so it is a question  seventy six revisiting the reasoning of a previous decision is especially i'm quoting appropriate when the record contains new evidence that differs materially from the record evidence at the time of the previous decision it wasn't what is the new or the new evidence is received the opportunity to buy four parts and so if you just asked the question were they continuing to get four parts they were but here's the problem the cost of that the burden of that for every ford dealer who decided that they to the window like anybody else and you pay retail and you get them to pay the price you know it was not being provided through the fourth contract which is critical that was critical to your honor's decision and it was wrong and for and for that reason you cannot follow every one of those individual players had to sign up their own individual do you deal with a lawyer we cite individual deals with every single plaintiff that would represent and would but for the prosecutor cases undergoes you know as i previously argue one forty seven quote redetermination of issues which is what we're asking here redetermination of issues is warranted if there is reason to doubt the quality extensiveness or fairness of procedures followed in prior litigation this court said we asked permission to have a supplemental brief and so that we could introduce that fact and show more that the fact that it was being discussed was incorrect this court denied us that opportunity to do that all i thought that there was a current understanding that the class wide liability traumatization would be reviewed in the bayshore wonder what the parties said to the court the reason they wanted to have officially for b judgment is they and that is one of the issues that was to be considered in determining whether the riemann had reached or not respect to judge ross what happened at all argument is a question was asked what was the what's the breach  said that the bush was a failure to supply heavy trucks and judges randell said well what about parts of it says parts as part of this is well worth council jumped on that and said well they're still supplying parts and  your case was governed by art and bad decision and war sales correct and that but the thing that would distinguish it is there were parts being a new and much more if a much different and onerous agreement in order to get the rights you've already had that's not the case so that basically what you're saying is subsequent after march twelfth ninety eight there were no parts sold for continued to work with freightliner to make sure that parts were provided to the dealers and let me explain this is all actually set forth at pages eight eight fifty eight sixty two of the joint appendix which is part of the ford freightliner fundamentally is that for the first miner will cooperate to make sure the parts get to the dealers and that happens in several ways one way as my my friend on the other side correctly stated is that the price business was sold to freightliner and so we agreed in this agreement that they would work together in several different ways freightliner could ask for law now if i could i'd like to back up to issue preclusion i think that the court doesn't even need to reach the points i've been articulating because issue preclusion clearly applies here we had a situation where there was a certified web of a class always  the argument he would make is that this case is almost identical to gross sales and ironically wrong the sales applied michigan wrong just like this case has michigan  as an aside there as one point on our brief and i think this is important the class representatives specifically bayshore forward represented to the u s supreme court in their sort of quiet in this case that they were their representative capacity and that the supreme court's judgment would bind they were timely and accordingly the supreme court's judgment would apply to all the cast members because quote and you need to be sure the teens extends to the entire class of dealers unquote that's the precise logic that they're now disclaiming so i think there is a judicial stop at issue here but moving forward amber i think there's two other grounds in addition to that you we've discussed which you could affirm the first one being we have the case again the exception that was in most of the cases that i've read the only exception is miscarriage of justice and in this case there is no such a miscarriage for the reasons i discussed with respect to the facts and then the last ground of course is the one that this court accepted in the fed decision that judge the record was on the panel and that is that the contract allows for stop selling these trucks regardless majority to be saying as much point two i think this is perhaps just as important the corded wore on her stood the effect of dissent as argument to be that it could completely terminate the contract by a backdoor method without using the separate germination effect that would make the translation cause analyse here there's no question that the contract was not entirely terminated by the cessation of truck sales for continue to have a service and parts relationship and freightliner did with these dealers for years in fact all the way through at least two thousand and nine the dealers of course had the right to terminate the contract at any time for any reason and did not do so precisely because they wanted to have that contractual relationship they were making two thirds of their profits from it that's an appendix page nine o five heter sponsibility to these dealers to make sure they are going to keep getting parts and so they said we're going to set up a situation where you can still sell heavy trucks if you're greta work with freightliner which will not make any trucks and you can still get parts if you work with us and so we're not going to terminate this because the parts business will be that's of course these points is that first of all at least most of the parts were made by third party members prior to the handover forward contract with those vendors and said we will buy partially and we'll send them to the dealers and request after the handover for existing parts but the contract continued to contemplate that if freightliner needed further parts that i guess that either for or could make itself that ford so had in stock or whatever reason where they were common parts that applied both you heavy trucks and other sorts of case now the collins case make clear that the question with respect to represent of litigation is not whether the person person is formally a party in the sense of having been named or brought before the court the question is whether they are adequately represented and have notice that someone else is before the court on their behalf and in fact the restatement second of judgments sections thirty four forty and forty one at least two of which taylor allies on say explicitly you don't have to be a party the court doesn't have the jurisdiction over you the whole point of the section is to talk about when that has not happened and when someone is nonetheless bound and also relaxed and pretty yes that's correct purposes well and if you look at the terror case i mean i think it's quite telling taylor has a situation where the question was whether someone was bound by someone else's look a geisha of course and the court never inquired into jurisdiction that's not the issue the issue is whether the nonparty is nonetheless bound for one of the various reasons there can be pretty cross litigation agency agreement and so forth and so i think you don't on but i think a separate point i guess is actually i was the thread my power just saw stick with my one point when you get older like me it happens more and more often have noticed the person is not before the court where they adequately represented and one of the issues that both taylor and richard say are relevant with respect to adequate representation is what was the understanding of the purported class representative as to whether they were in fact  someone and in this case all three of those points very clearly show that there's a stupid question here there was adequate representation these people were chose to be represented by the same class council the district court found that they were all the wind and they stayed in the same and that in terms of who was representing them all the way through to the supreme court they clearly had notice i don't think my friend on the other side of the street that and as to the understanding of the class representatives they told the supreme court in no uncertain terms that they were there representing the class  right and i think that in a lot of ways i don't think this court needs to get into the delegation issue because you know the only question is whether the first decision was a miscarriage of justice this is not everybody dition of the first case but i think the fact of the matter is for him for a whiner were acting in tand to make sure these parts got delivered and they in fact did get that there's lots of testimony that all the dealers continued to sell for parts right through the trial which occurred in about no less than five years ago all right thank you  dealers had under the ford sales and service agreement to be able to receive good parts and sell them for resale it was could only be accessed after ford left the parts business if they  if and only if they agreed to i separate contract binding themselves to many many additional obligations that they did not have as for dealers it changed the only way they could obtain those parts was this and that and  in the record the only way they can obtain more parts at that point would be to become a sterling to it and that wasn't any requirement that they had when they signed their agreement with ford when they signed their agreement ford it said for would shout supply company products to the dealer that's to be in the original contract the word shall supply company products would after march of ninety nine he supplied no company products and not only that and the only way those us could get those companies products would be to sign a separate agreement with their own so it didn't delegate their agreement they didn't live up to their agreement they reached their agree so that and they really i don't think there's any question about that one let me talk quickly about issue preclusion the time i have to ask let me respond to the point it was made in the brief and then by counsel this morning well you told the supreme court that you were there for the class what happened in the supreme court was counsel for the eleven point us who were who were for the supreme court made that representation to them not counsel for the sixty three we were wrong in that statement saying that we were there for class we made a mistake everybody can make mistakes that's what world talking about here that we made in there but we can't create jurisdiction where it doesn't exist nothing the council says creates traverse the and this court has been very firm about that in the past so are saying that we were a class that was a class or our saying that the court had jurisdiction doesn't make it so you have to make a decision under fifty for a b and undergoes it which my friend has never comes to grips with wants to talk about cases in which there were twenty three c three judgments that were entered there was no twenty three c three judgment entered in this case and undergoes ian in rwanda who fifty four the ones you sever everybody else from that case that case can in fact be decided more than once now in most cases it's going to be decided the same way here we have the highly unusual situation where because one of the facts that was relied on by the prior panel is demonst