with your client that section one point two does not require a showing of revenue earned in two thousand and ten so if if indeed that were the dispute and the court in the underlying panel had said you must have revenue in two thousand and ten then that would be the big issue that would be beyond the facts of the case that would merit it but it appears that b p has already agree that one point two does not require a revenue in two thousand and ten and it also appears that the case did not did was not decided on the basis that revenue was not earned in two thousand and ten eyck so i i don't understand why that's the the to pivotal point of your argument because the appeals panel did not did not deny the claim on the basis that it did not distribute just demonstrate revenues and in two thousand and ten they relied on the fact that the last tenant lease ended in two thousand and eight and there was absence of tin it for a long period of time so it's not just two thousand and ten revenue it's since two thousand and eight there was no tenant so that's different those are two different things yes you're right there was two questions so to the first question this is a big might agree issue of whether or not there is two thousand and ten rather than in when it comes to employment this sole purpose is to lease commercial property the fact that there is no lease is the same as one of the same as having no re you had attended since two thousand and eight so there's two thousand as part of two thousand and eight and there's also two thousand and nine so there was no business of printing going on so it's not that you're some start up business and we had zero eight and zero nine we had a lease that ended in a way you're saying despite the fact that there was a lack of revenue at least for part of a way and then i don't know which is which is in the record you're saying that they didn't consider that that they'd look soley a twenty teen and reject at the club yes that's what i'm saying that with the subtle programs interpretation of the class definition that require showing revenue and and you of revenue that's one thing and then you have to have under the terms of the settlement agreement some benchmarks for determining what the law see is and those benchmarks are based on the history is their right correct judge particular plan is defined as being part of economic laws on its in destin florida that's the most preferential zone and therefore under the terms of the settlement agreement exhibit four b they don't have to prov so that was the first question the second question is the benchmark period can be you can compare two thousand nine to ten you can compare the average of eight and nine to ten or on the facts of your client's case the appeals panel could have determined that you lose apart from whether there's some blanket presumption and i do want to ask you another question about the blanket presumption you say that this is what the appeals panels are doing but you pointed out correctly that there are multiple appeals panels indeed at least i think in a case that you pointed us to in fact the court specifically said you could recover once if you had been even if you didn't get any any particular revenue that year so the appeal panel wer concluding it is irrelevant that the claimant did not have an active lease at the time of the spill because the facility was available for rent so we have one panel that did say it was irrelevant about whether you have  revenue in two thousand and ten and indeed another one says because the facility was renewed are available for rent and incurring expenses it was operating and doing business there are appeals panels finding the office it so i'm sure that all the appeals panels are applying this rule in correctly and in violation of the settlement agreement in fact we you pointed us to once yourself that they did it the right way that you  the evidence is mixed on the point but the decision was not made on the just the point that if there was no revenue in two thousand and ten there is mixed evidence on these other factors from which the appeals panel the decision in this case that so show what case it says it is a the dispositive factor rather than just some factor judge i will read to you one of the the appeals panel was decisions that we submitted was  circumstances it seems to me a very important one looking at the of decisions that they cite is where they advertise in the property if they're advertising the property well as pretty strong indication that a real estate company isn't in business or there are in fact ambush a little bit and we try to figure out what they're going to say because we don't agree with them about the law and then don't we have a layer of for this case as to whether the district court abused to scratch as to whether or not there's law and by definition we have a fact found dispute they don't even raise the fact question that leave that aside when what went on that bus which i don't forget it my friend says they had they point to twenty or twenty their peals people could have taken the evidence of the communications with the broker and said well it's almost like listing the property of the people's panel could have done something with this guy with his kind of mixed bag of  s yes i mean i think it would have been within the range of reasonableness for them to have done so i think we would have objected and here's why the what the least lapse in two thousand and nine and they say  person kept coming back to us well you know it often is the case where you'll see the you know the traveling salesman will knock on your door that person is doing a lot of business they're trying to do something the other person who's who's been contacted isn't necessarily doing business at all so i think we would have opposed that but at least there would be the i understand why somebody could reach that conclusion that's really not how they present the case they present the cases that there's this massive legal dispute and that just isn't isn't so it helpful if we were to resolve the questions that are properly before the court to note the agreement on what the standard is in the opinion they construe the language doing business or operating they say undertaking commercial activities or something that of fact i think that's a correct statement of the law but what do you do with that well of course you look at the totality of the circumstances you say  where they advertise it what here they weren't did they have a they have a revenue west pretty strong evidence here they don't do they have a brokerage contract well here they did it and then they don't record site seven forty seven they're being asked questions and there's no evidence at all that they're even responding to those questions well it's hard for me to see how you're doing business if you're really doing business with your real estate company and people are saying hey we have an answer for this and there's just silence and then they come back and they say you know interestingly after several rounds of being rejected on the evidence is oh now this is our  you but it's also a me just again the same thing that was said holmes motors and some of the other decision this court where the question for the district for isn't is this particular case right or wrong but instead is very them mandatory reveal well then the number would be much much higher still just to court is pretty flooded as it is isn't it if you're writing these every single time we see it we have two or three of these correct and that's with discretionary view that's reason when they it was and remember of course this is just a class settlement where not say if you have valid claims and the settlement says your i pass member well i mean so i guess you're out of luck this just like any other class settlement we're saying your particular claims are either resolved or they're not by the settlement but that's no different than if we just talk to an individual member of the class and say hey you're raising appeal but we're going to let settle this and the case just goes away that is in effect the rights of anybody else so you see the sometimes in these appeals the idea that if the if there is no relief well then there's no relief no that's not all this means is that if you're not a member of the class well then you're not a member of the class settlement so that's no different than you are no different than you are in the status quo ante so i would again i would i would call the court's attention to  the causation standards are relaxed i agree that that's plain from case of the settlement but the question is are you a member of the class at all this skip the threshold question which is are you a class o so we know that can't possibly be correct so the question is what more do you have to show one of their pieces of evidence they talk about is all their expenses of owning the property but anyone who owns property has to pay property taxes and the like so that that can be enough if that's the case again it just right now to the business from the settlement so i don't think he's on a argument holds water either so we're stuck with