fixing prices we are hurting our analysts users we are hurting seeing the court so he was the president stand for he said we should stop this evil practice and he said that to his colleagues only could earn a profit so the argument they were making at that time sounds like the same argument i made with a distinct lack of success before the previous panel of this court some years later that's right act by which time everything you're from whining about here with atomic weapons on the table for it they still made the same market yes so so hiding that evidence really didn't affect their ability to make the argument although and there's nothing in the decision which judgments people thought was going on more detail later and necessary but i don't see anything there that suggests that envelop with anything to do with it like it's it's the nuclear secret and when the secret came out you still lost in the district court and ultimately you want to hear with reasons you have nothing to do with the nuclear secrets that was not a choice by this court and this court had lots of us to choose from in fact you tell quick wasn't implemented planned but it held things back by one year i look at the opinion previously issued by this court and it precisely history that notes the representatives considered two different business models of which operate the new common database the notion that you could have a so called these centralized model that doesn't strike me as any big revelation of ground i'm looking at it some years pass but again what is it about intel a quick that suddenly turned this case upside down and justifies characterizing the current defendants conduct as being part of a price fixing conspiracy as opposed to being reprehensible discovery  and engage in crime that's already here you lose that protection that's what the a thousand well you may have a cause of action for criminal behavior what turns that into a cause of action for price fi with somebody who can aid and abet without performing a criminal act but you can link that person to the intent of the conspiracy yes that's sort of the mirror image of that you can point to people that did what you consider to be criminal acts but there linkage to the price fixing they are limited to conduct that specifically threatens monopolies or involves concerted action that has the potential to harm competition so that this high bar had only satisfied what what what what what's the basis in their pleading to get overcome as well they allege nothing more than in the course of responding to discovery not any event by which the defendants initiate anything to advance some interest responding to those requests and at least according to the allegations making support judgments and violating discovery rules for which there was a sanction for good sense of understatement i've got clients and i don't want to be too hard on them but the point is after he released bought him hard you get a penalty for unnecessary roughness but you're still trying to win the game if you hit the quarterback out in the parking lot i think you commit an assault on your heart yeah tonya harding is a good example if you hit the quarterback over the head with your helmet while he's lying on the ground because you don't like him and he said something bad about you that's kind of like the share exceptions or pennington is it's not to play the game it's not to advance the interest is nice to case it was decided by the supreme court and particularly two requirements first of all the causal connection between the alleged wrongful conduct and the harm to competition has to be direct not remote and non speculative what than just conclusory allegations to reach those few solutions on which you base your question but even if you reach them my point is under interesting principles under associated general contractors we are causal connection is remote decisions that decided this case was decided on the application of law to undisputed facts but because we withheld and they chose to make it a big issue in the case and extend the time which could have just as easily been extended because the judge got sick or the jury got sick or counsel needed more time and there's a whole bunch of factors that contributed to contribute to a court of law to make a court to lay under those circumstances can that that the conduct was all right well they claim that in the heads of the people that were doing it but the objective conduct is responding to discovery but if you had anybody got a letter that documented that the allegations are correct that is that there is a discussion and the attorney says you know if we keep this ball here we're going to be able to lay the final judgment for another year and wrong to make millions of dollars of profits as a result so you get over the factual questions and the things that i think were skeptical about with regard to think no matter what evidence you had of the motive you can overcome the standing problems with the remote connection between what the what was done and how it injured competition but even if you could i think that letter would overcome one element of the sham section and that would be that it was subjectively motivated for an improper purpose because it was not the initiation of the lawsuit under this court's decision and caught and established nor pennington cases the test is whether the misconduct actually deprives the underlying litigation of its legitimacy not whether it's the latest a little bit but whether the misrepresentations and the fraud this is the third prong it's this court's decision in kabul whether it was show that because remember whether the conduct as alleged deprives the underlying litigation of its legitimacy here we have counsel's admission on the record that after all the discovery that was done in the underlying case he could put on a valid case and he did whatever effect i want to comment while i still have time on what counsel started with which i think is an important question i'm sure in the minds the court of how does this case differ from the the awful case which is this court decision where discovery misconduct did result in it wasn't to win the underlying case and nothing to do with the underlying case wasn't part of the defense of the underlying case but the conduct was found the alleged but found to be for no purpose other than to initiate this baseless proceeding baseless they found and subjectively motivated to do harm they were playing the game in other words they were off in the parking lot to use my analogy here the only allegation is that we were responding to discovery th character of the con oh sure it's alleged that it was wrongful criminal but it was part of our duties in the litigation to respond you cannot infer from that conduct at least you cannot infer exclusively us counsel just before he sat down about the best case he had for showing that when lawyers engage in a conspiracy or help to suppress a conspiracy they can become liable for it he cited the more case that's not more involved a cas involved the issue there was whether the defense had fraudulent lee concealed information so as to extend this national imitation it was not anything about joining the online conspiracy it focused entirely on think i think the point is whatever you think about the wrongful nature of this conduct the egregious nature of it and the immunities you don't get out of the first box because it's just too remote speculative if you look at the test under associated general contractors this doesn't meet out of their role as advisors and become the makers of policy for their clients here all they've alleged is that the lawyers engaged in discovery this conduct in the course of discovery but responding to discovery they can't meet this heightened pleading requirement with those allegations they put the conclusion that this was policy but for example in the spanish international case which i wish was a nice circuit case but it's a part of the strictest but if that were my circuit case to be no question we would win some interest in the underlying hump and sought to personally benefit from the fruits of the and i competitive product well maybe then you get there that's the kind of an allegation that would take and of course that's not pressed the lawyers were doing what lawyers do and you know maybe it's no secret that lawyers sometimes get carried away with trial lawyers sometimes have big egos we really want to win really hard and sometimes we cross lines and discovery sanctions are available when that happens but that's what happened here or more importantly there's not