yesterday on the eve of oral argument at eleven o'clock in the morning the temperature went up i received a motion for sanctions against my client claiming job is not to throw my client under the bus but to present the merits of the appeal just plowing you'll have an opportunity to respond to that late motion in writing things which i presume i ask you when we get if we get to the merits of the appeal and focus on that yes thanks judge your position in theory in this court seems to be completely different from the theory that you offered in the district court absolutely judge the issue that the preliminary threshold issue is that we believe that federal law applied to rule sixty eight dollars judgments which everybody agrees are considered under illinois  same in illinois law of the same as consent judgment the other side citing a group of cases before judge gettleman and before this court said no state law applies federal law incorporates state law to the circumstance this case yes that's right because of erie kind of judge hamilton exactly but you didn't make the arguments to the district court that you're making to us did you know they did that's exactly right right did not we said i mean a lot of if i could mr blo t skip to a couple of issues that really concern me about you as a child your client made a rule sixty eight offer of judgment correct yes absolutely that was accepted it was have been paid no why on earth not know why or why not and why is that not evidence of bad faith in this litigation my client has submitted to post judgment proceedings as mentioned in the transcript that we quoted that they didn't see the point of continuing to pursue them as long as the amount was as long as what it was and that is because my client was heavily in debt and prove that through through the discovery that they presented and so judge hamilton this case this appeal and this i'm tired case represents my clients hope to have as it is i'm sorry this case here's here's what words from yesterday put aside precedent which does not favor your case but if your position were correct here we're all familiar with commercial relationships in which disputes arise there may be narrower claims broader claims maybe you just see contract damages maybe if the temperature rises you start and would they be able for example if this case were to go forward they be permitted to assert further counter claims in this case against your client arising out of the same transactions here for let's say claims that were made were could be made so you would assert a race judicata claim as to such counter claims if they were asserted in this case because they understand your point judge hamilton it seems to me that my duty to my client would say that i would make that claim i have with so your positions near your counsel your position here the seems to invite a really outrageous form of gamesmanship if i were to accept it i understand should i be troubled by that yes you should be judge but but the issue that we're arguing the issue that we're presenting to you yes that under rule sixty eight  law applies and that under that rule we contend that a consent judgment is all the and you've seen our table in the reply be final that that under rule sixty dollars those consent judgments do not constitute race judicata and so the problem with the position that would otherwise be take is that i gamesmanship remains you know it appears from this suit that the plaintiffs never really eat their believes that oh the amount or it seems to me that part of the callous in making the decision that sixty years if you look at the judgment the way the amount of the judgment was it worth claim nothing had happened so that means that means that the same issues that are in front of you now where counsel for mr garnet are trying to get legal fees in this case would have happened with respect to the entire panel of issues in the case below as we understand bill sixty rule sixty eight dollars allows us to make an offer which under extraordinary claim given as given illinois law on this subject but go ahead and proceed to judge we we sincerely believe we now down to i think i'm down to fifty seconds i just read so i sincerely believe in the table shows that there is a split there's a case that says there's a split the petition for leave to appeal the other side did not get the four petitions we got them one of them so there was a split the other never mentioned we think there is a split and that is a critical for i could ask you briefly though you chose to file this claim in federal court for act just because judge under the commodity exchange as we have no other place to file it it's under the condit's change act specifically says that claims you should affirm the judgment below i'll address if that each of those internal try to be brief and then i'm happy to answer any questions they have so the the st reason that you should affirm the judgment below is because how waived its entire argument on appeal they tell you now that this is a question of illinois law they told judge gentleman below this is a question of federal law he agreed with them and they lost so they've waived their entire argument on appeal if you consider illinois law despite how as waiver illinois law is clear and it's settled in this court three different times this court has said under illinois law a consent judgment is a final judgment on the merits and in its appeal hell just ignored these cases they cited one but they didn't say anything about it and they simply ignored the other two cases that's not a viable option that's not a viable appellate strategy for dealing with precedent and then if you ignore that failure and consider whether to overrule your own precedent or whether to certify this case the clear answer is you should not and again on this issue too we think how never actually in cages with the relevant issues what what this court does what  is while there are some there are some courts in one of the intermediate appellate courts that find that a final judgment that i'm sorry that a consent judgment is not there not even making an argument that works here that's an argument as we say in our sanctions motion it's forwarding to lose this issue was actually decided by this court in all states v menards the court considered should we apply different versions of illinois law based on where the district court is and said no we're going to do weary we're going to predict what the illinois supreme court will and so he'll never even makes that argument the cases that go our way with the argument would be these st district cases are more consistent with what the illinois supreme court would rule because these would be persuasive in front of illinois supreme court because they don't even engage in that in fact they don't even tell you anywhere in their briefs including in their reply what those cases said the only way to answer that question is to engage with the legal reasoning and the logic of these we think are two these two st district cases that have any presidential and how those even tell you what those cases that how they ruled why they ruled now we did we address that i'm not going to go through all of it but we think it's very clear from what we s briefs that these two cases goodman and curry they trace back to the scandal of this case and that's a very unique circumstance the outcome in that case probably made sense but the court there did not say no consent judgment is final they said in this case based on what happened here the judgment that you want to enforce party is not what we think curry and goodman just misread those as we say in our briefs curry and good men are contradicted by dozens of other a lot of precedent this includes cases in this decade this includes a st just your case in two thousand and thirteen the camper case so it's very clear we think it's very clear what the illinois law is and again the question that they would have to address here to get you to change your mind or to raise a genuine uncertainty is whether the illinois supreme court would change their mind mr prosecutor i just have one i have one question that's unrelated if you don't mind to the point i'm making right now and that is i noticed in your in your read brief on page two in this for  is their diversity jurisdiction in the st case or to put let me ask the question differently does the reason that you waver a little bit you know waffle on that in the red brief here did that seem reason exist in the st case well yes it would have as a matter of fact as as we say in our briefs and you can sort of see it in the filings of all when advantage brought that lawsuit against al right they had represented representation from how our sole owner is a person a mere five and so we absolutely believe there was diversity i think we told our belief and in the jurisdictional statement here we believe there is diversity all of the different cast of characters that hal has told us at one time or another are their owners the ones who we know are all new york city and so we believe it's one of these three people side infeld weber reform and that belief was there and in the st lawsuit absolutely in the st lawsuit so you didn't you didn't indirectly put that sentence in yourself in the brief here in our court to raise a question about whether there was federal jurors out you know we slowly did that because we understand we have an obligation to tell you to tell you whether their statement is compressed and you made that point and maybe the illinois supreme court would rule one way does is not enough for you to overturn your precedent it does not create a genuine uncertainty about what the stables do you agree that the gamesmanship concerns are raised would be sixty eight rule sixty eight and i would just point out hell doesn't even quite believe what they're saying in their reply brief on page eighteen they kind of i think they may enter into a different issue not finale of judgments but an issue they never raised but what they say is well obviously this is how's liability to advantage aside they can never come after us for more money they could never susan but if what they're saying is true that these judgments are quite of course we could i could say that we could see them again tomorrow we could make up time or claims we could do it over and over and over again if these are cases that is reasoning and logic you can consider because there are reported cases but there are four unpublished decisions and under the th circuit case law this court  noted that in illinois under a supreme court look twenty three you don't cite them it doesn't bar the party parties from citing cases to use the reasoning and logic he says the reasoning and logic of the st two cases should be the only thing you look at and we say that the foreign published decisions also have reasoning and logic and they do say if there is a conflict they do say the decision if in fact if in fact there's no there there is no race