seven minutes at the end of my argument i think that this matter probably will will be relatively brief this morning the court has heard now in three different cases on the  designed to benefit from the run up in prices therefore it is not exclusively a question of whether what they did nominally violated a federal tariff the question is did what they do violate hard time seeing the distinction because if anything i would think would run in the other direction that is if you have had enough activity various pieces of which violate the tariff you think it would be more have had no problem  operate what you did not receive from the other side the choice of law provisions of the terra and those i believe are the most compelling part of the story here because they clearly indicate that arbitrator to decide if appropriate under california law in other words we have a situation where the field isn't preempted and we have nothing in the tariff that either side has given you that the record on the manipulation of the western and the tree markets clearly demonstrate that what they were doing was not permitted by the terra therefore it's hard to say that the federal power at deprive those damages can be assessed with reference to the refund liabilities in the refund action so we see a distinction required commodity and energy also like to bring the panels attention to the fair or opinion because it contains some compelling reasoning on the question of whether when you're looking at remedies for unfair conduct you must necessarily determine that the action is preempted if the conduct if the if the entity is governed by the terror and the question there is whether claim necessarily treads upon federally deserved area in other words whether the court has to address the reasonableness of the great charge and in this case no california court is going to have to it depends on how you measure the restitution every remedy under section under section seven thousand two hundred and then with respect to the heart rate after claims as i've mentioned before what would likely happen would be that federal statute has a remedial provision and the state is trying to piggyback on providing additional remedy for the same wrong i say that's also usually cramped well i don't believe so because the difference here is that you're looking at injured and and principles are right right seems to me that one of their principles is that providing an additional remedy is a poem problem yourself as an advocate of business organization as you must do to california so i treble damages remedy under the current rate act allows california to punish the granting words under its own raises a federal question if the tariff interpretation is a matter of federal law i don't believe it does i'm not a point where i have researched and timing and i interrupt at this point to take another question on this morning's docket there are proceedings underway at the federal energy regulatory commission addressing and resolving the disputes arising from california so called energy crisis and the commission  all that means so called energy crisis that's the way that it is has been characterized typically in the press ok so what we did have an energy cri i'll be happy to do that let me say that this is the third case that i've argued before this court on these issues and one of those cases this no homesh address was the first  that council attempted to make namely that they have alleged a series of acts or course of conduct unlike the single problem of ancillary services address quote filed by each seller coupled with the terrorist filed by the california power exchange and the california high school the conduct alleged as the basis for court describes the complaint in that case as alleging that these practices call caused the plaintiffs quote to pay prices for electricity and excess of rates they have would have market power to increase prices above competitive levels close quote that appears in the excerpts of record have one page twelve i think pressure saying as i first has now found that that's true and therefore nominee in which case this is a waste of time or the additional remedy that they would seek under state law would directly conflict with limits that kirk determines are appropriate on the supplement what the federal government does in an area where it has exclusive jurisdiction  or by field preemption and by conflict prevention we have helen statement of issues on appeal lists the questions as whether its claims were properly dismissed on those detained three ground regulation by the states close quote well the tariff is not an act of congress making changing the preemption rules and making these claims subject to state law  service part of the contract between the parties to the tariffs and that's why the choice of law language is women again it's not a new issue grays harbor illustrates the narrow category of contract claims that could fall outside of the scope of the first exclusive jurisdiction there the court gave the plaintiff leave to amend to allege a state law claim seeking a declaration that no contract had ever formed because of mutual mistake that appears a page six fifty two occur in state courts normally or something as straightforward as a collection action somebody doesn't pay the rate if the chair of provides and a suit is filed to collect the payment and it's not the kind of complex regulatory issue that brings the commission in play  i guess to some off on this point the planets are not parties to the i still repeat after the plainest claims and i contract claims the plaintiffs claims are precisely intended to questions if your honor i guess i would also say that there is a discussion in the energy input no twenty five of the interplay between the supreme court's decisions in arkansas louisiana gas company v sixteen the court resumed the bird must have the power to work or retroactive refunds in that particular circumstance because quote if no retroactive refunds were legally available court now you have some problems because if you treat it as a title came claim you don't have a private right of action that's never an issue that's been raised and argue that's just the answer and because they are there were claims in addition to the underlying securities x plane and issue i'd also like to say that the tariff venue provisions don't impact removal that's another brief if you look at the language of the venue provision it explicitly contemplates a skewed in federal court located in california the case was removed to a federal court located in california and therefore the removal was wholly consistent with the language of the venue provision in the tariff and i would close on this point by to federal courts of exclusive jurisdiction over alleged terror file a sions and neither ferk nor the parties to the terrorists have the power to limit federal court jurisdiction expressly granted what was going to happen and right was explicit here we have conduct that clearly violates the tariff and there is no conflict preemption because there is no current actual conflict that the defendant have pointed to they're pointing to a hypothetical future contract conflict excuse me that's not enough they are they have not told you when clerk told them they could manipulate the energy market in california  here to lock your feet stands for here we have plain defendants who are coming in under the guise of a hypothetical conflict they can't tell us why the conduct alleged was permitted by for they can't tell us that they have to look at you cannot demand a behavior that the tariffs are either prohibits and you cannot prohibit a behavior that the character names haven't shown that any of the behaviors in question were demanded by the different facts but we have believe