time ten minutes for rebuttal a particular view of the number of respondents who i believe will be speaking separately this is an action as you know to recover damages based on violations of the sherman act the racketeer influence corrupt organizations act and the doctrine of conflict preemption let me start with feel preemption for the moment you have another petition for review pending before this court right yes we did you on the first quarter yesterday and you're asking an application for review  for that for us to find that didn't do its job and determining whether the rates were just unreasonable why doesn't back asap primacy over this how can we have two or there certainly is a possibility  to link consistent decisions and doesn't that really get kind of put the field preemption document doctrine into sharp focus actually i write i don't believe that there is a place is for conflict and decisions does not address the question of whether or not be conduct of these respondents violated the antitrust laws the most they can come out of the first decision is a finding that yes i think one of two things either the rates were and just an unreasonable under the federal power act and there may or may not be a refund because part of what's of the issue in this case is whether or not the commission has authority to be exercise discretion in that regard in which case parties are directed to comply with federal power act or there's a finding that there was no violation of power act but let's let's assume the latter let's assume that our panel says that these rates were just unreasonable  fall of yours thing why federal law such dark times you make that finding your honor you would have to make a finding which we think is impossible based on the on right behind this is that's what we call hypothetical question gets right which which is rates that were being charged exceed the maximum permissible but that assumes the answer it doesn't is it so how do we get out of this endless circle i mean we've got that has already held that the filed rate doctrine applies because market based rates are rate within the meaning of the federal power act and if you take just  rates were collect arguments that are pretty close the argument you made in this case is that the rates on the northwest exceeded the maximum price and that issue was before the other panel that has this i mean if i read your brief i read your brief in the other case that's morning and that leads me to to wonder whether or not the remedy is for early to and state are related because to to determine whether or not you have a cause of action in this case depends on the determination of whether or not the rights are just and reasonable and if that is true then you're preempt it's not so much the rates because you know the rate design next in the price here and that's our whole argument is that the price here is consistent with the rates the rates that we're allowed to market were market based rates and market based rates have by definition and capital market clearing price these ra the concern that we've expressed in our prior opinions that what you're really asking the federal district court to do is to determine what the optimum rate should have been in order to measure the damages that you now want to travel first implemented was a period inherent cap on those rates you can't it's not a license to charge anything then i understand that but the question i'm asking you is really one of who decides and one of the names that i see running through our cages is th at we're all pretty well convinced that it's pretty it's a bad idea to have federal judges do what congress created first to do there is actually no question that the federal energy regulatory commission has the exclusive jurisdiction to establish the right and we believe that they've done that consistently by saying the upper limit to market based rates is a market clearing price but you're still asking as the remedy if you if we allow iran to trust actions or proceed somebody presumably a well instructed jury and or a federal judge will have to decide what the differences between the furka proved rate and whatever the rates is and i think we basically was charged for judge thomas asking you to answer is that it hard to calculate damages you have to compute a hypothetical right and compare that with what was charged if you're saying you're saying the maximum you're going to ever claim in this case is the market clearing house price and that's one things of which you're saying you're not going to put on expert testimony to say that fair and just rates should have been x i know you are our position from day one has always been that the reason that these rates are talk about that and i'm sorry to interrupt you but i we are time is limited the the market clearing price is based on the spot market in california right i mean that was the that's a that's a that's your measure of damages which is a it's an option market here it's awfully difficult to compare bilateral transactions with with an index price as a as the rate design was approved in this case with with the california market clearing house price because those prices are set to set the price throughout the markets here in california clearing house prices i realize that by by definition those prices out to be higher and i can understand why your client is irritated about the prices but the market you're talking about and civic northwest is fundamentally different market isn't it it's  that was one of the they had nine basis of what let's just take them which to mean as i understand the ruling and i don't purport to be an expert in this area by any means but as i understand what first sad it's a different the different market because of the fact that the manner in which electric energy is procured it's done under bilateral contracts as opposed to the spot market that's what the administrative law judge said that wasn't what the commission itself said but they denied relief right ignited the commission denied relief based on nine reasons but the bilateral nature of the markets was one of them i think first first basically was looking at a situation of in the future case in which again without allegations of fall there was an attempt to t do what is being done in california and the one of the things which they were very concerned about is the fact that so many transactions in the pacific northwest part being bilateral but more important relief and they thought because they couldn't exercise jurisdiction to make them give refunds that would be an equitable i don't think there but again there was there was a hodgepodge of reasons of the fact there were bilateral contracts really wasn't one of driving force on this rate this was like it was a long term contract but it's energy price was based on the cob short term market price that rate that pri by for his whether or not you have a massive charge price in excess of the market clearing price and the requirement that you file the quarterly report and in this case if it were not complaining about how ferk separate for the contract which we agree that because there was never subsequent quarterly  that that is only true so long as you meet the farmers union requirement which is your subsequent enforcement which right but in some of your questions to counsel's repellents i think it's important to again to five in this case what exactly is the file break that we're talking about because it's quite a bit of confusion on that issue i think in the briefing and there the positions unreasonable and in the public interest it was not entered into before pursuant to the futures market based rate authority was specifically approved by for the abide by the twenty first so it isn't incorrect to say that  isn't is even a market based authority has to respect that contract at the same time there's no reporting issue with respect to that contract either because a contract in the reader contained in the race cage schedule was specifically approved by only six damages based upon the first contract the contract with between the court and pugin that is the only measure of damages the lives of the complaint relates to that contract and the comparison between the contract rate and want any means and all cases say that that rate cannot be disturbed it isn't approved by for and it is just and reasonable but i will get to the second level the complaint could be read also is challenging the market based rates of all the companies that sold power into into these bilateral markets that comprise the index the missing index and by saying that that rate by saying that the index was too high they  and i know judge thomas you you're quite aware of those filing requirements because of lock you refer but what you may not be aware of is that there's never been an issue with respect to the reporting done by the w because all parties acknowledged that the w s p peak filings the core the fines did conform to the to the reporting requirements by listing price date amount center and that is you can find that at ninety nine for to as i understand it is not to quarrel with any of what you just said but to say that the companies conspired together to in a fashion that manipulated the index and therefore artificially increase the price by operation of the tariff and therefore it has nothing to do with the rate at all from them a lot that their exercise of monopoly power that they were able to do this actually jack up the index and therefore allow prices to be approval of the index itself but if through the exercise of monopoly power the the fact of how the index operates has become manipulated then there may well be and i trust that if i don't leave there is for two reasons specified in the contract a remedy that is still incomplete at first with respect to a different market the california market and different types of transactions which are spot transactions versus bilateral rely upon is not a file rate at all it simply is not a filed rate and it is not a as he describes it the baseline for four for judging the pricing of bilateral transactions there is no lot of that that in fact there is no case that says you can use a rate from another case or a remedy from another case in connection with an argument to avoid the fall rate doctrine in the cases are all remedy and i think they have they have raised the firk the same issues that you see here in fact if you look at the briefs we put into the record in the request for judicial notice they made exactly the same arguments that they've made in this brief you see the same are your life really tied up in the appeal from that first decision in the pacific northwest proceeding often called the fugitive proceedings i would suggest to the court that regardless of the disposition of actually which stands in a different procedur  these cases and i mentioned earlier the square square again in these other cases we but to to to to wrap up i think when you look at the file great issue i think it's very important for the court that then if i want the filed rate of the different levels of the filed rates at issue in this case and there's i don't think there's any way that the court can challenge the rate in the future contract because it was specifically approved by for and there are no issues with respect to either  reporting or market based rate authority with respect to that contract and the only claim for damages is the one that is sort of in paragraph sixty fifty sixty one i want to address very very briefly the question of amendment for any sign of possible amendment and i don't think for the reasons i stated earlier that any failure to report issue could be asserted here and even if it could be asserted that would be an issue for f potential avenue of redress that the ninth circuit said was available on really and which was issues relating to contract formation i don't think that's available to the to the poor here and the reason contract in that case was entered into during the energy crisis itself in the way the mistakes that are alleged were due to where the market is properly functioning whether there have been widespread manipulation of the market in this case contract the one thousand nine hundred was entered into in one thousand nine hundred seventy and that was a pre energy crisis complaint and there are there are no parallel issues which could even form the basis for a minute here the second reason is that it is tied into the fact fer that application both expressly imply only that they had a deal they had a settlement agreement which contained a new poll to help our contract later became a rate schedule how can you challenge injury related to liability that the judge believes it would probably appropriate for further to address both issues rather than any having we invent the wheel on the question of market manipulation and the fact of the other formation issues but he hasn't actually are just considering whether to do that great hypothetical question my answer of timing i think is that is the appropriate answer that we do not have a conflict prevention issue until we get to that point where we actually do have that actual conflict the representations made that transactions because the transaction data could not be derived from the public record and that is if you read the pleadings in connection with the future case will definitely see that as a nation dispute in proceeding and also with respect to the the no intelligent buyer no responsible buyer purchases above that price and that you can only there you can only collect that monopoly rant essentially if you have an exercise market