whether they asked the whether they asked formally in the forms an application well but that's how you asked that and are you familiar with our recent decision in the snake river electrical cooperative yes i am i did i did read that it came out a day or two ago and we had the same problem in that case where where we found the failure of proof although it was after a trial so we had a more complete factual record but there was a complete failure on the part of the cooperative to actually make a formal request  that why we have these rules for summary dispositions right we have these rules for some we just position one there is no genuine issue of material fact but here the evidence show that again and again every time the liberty identified and place brief we have a declaration from from one of the plaintiffs or an agent of the plaintiffs quote we were told by p g n e that we couldn't get the gas pressure that pretty much killed the deal throughout the region and that the plaintiff was requesting the wheeling of the power here isn't there an issue with regard to whether piscine had the existing infrastructure in order to supply fifty pounds or more at the locations that mr tate wanted it no i don't think that at least at this stage that's not the case and he has not come forward and said we cannot supply the gas in the places that was asked what i thought for i thought it read something in the briefing about th can be provided the things they said they had a policy and this so called policy was to supply no more than five pounds per square inch not because it wasn't available but because they wanted to allow for some future expansion and so forth the interesting thing about policy and said well we can have we can we can accommodate the twenty pound per square inch c and g plants but now there's an egg doesn't that require actual construction in other words you have to  bases lay long trenches and and put different connectors and that sort of thing in order to tap into a distribution line at a higher pressure and isn't that why it's important that mr tate make formal application and deposit the money get the engineering studies done isn't that what the whole structure is designed for but that that is not what the evidence shows the evidence and that the back up a little bit yes you're correct that getting high pressure gas requires special facilities some ways to dig a trench and make the connections don't want it and that is why the application procedure is necessary but it's not sufficient as the the evidence shows that p g needs to practice get five pounds and so they put in a fifty pound application and suddenly they get the fifty pounds you know it's a situation like in the discrimination case somebody comes into the company and they say we don't hire people of your race and then they bring the discrimination and said well you know you didn't file an application when i was told that i wasn't going to get a job liberty was told they weren't going to get the gas and so yeah it would have been nice to file an application but the application would only gotten twenty pounds what they got they get they got fifty  exactly the legal declaration paragraph eighteen that's the e r change one seventy nine page six you see that all these reasons that they give that they were bending the rules for themselves they could be just as easily have bent the rules for liberty but they didn't do it terms of the the access to gas unlike in snake river where i were the issue did go to the do the jury in the jury made a decision that's all we're asking for here here we have evidence being put up front according to port p g needs told them you can do that but all you're going to get out of that is twenty pounds and that wasn't worth the time twenty pounds wasn't going to do them any good and it wasn't going to do them any good because before they went into the whole thing p g and e told them you will get fifty that you were refused what you needed and that's what the evidence here shows and we start with the evidence that p j needs self says that this is necessary up front information from the before the application goes then the customer needs to know and needs to be told vans when they first designed a machine that's how we got into the situation of having a fifty pound machine is that of a twenty pound machine it's because on at least one or two occasions down in san jose the players after being told that you cannot get anything above twenty is not available now it's like they went to the mapping department anonymously and found the transmission lines were available the didn't have the gas they did they did have evidence and you know again run summary judgement so the the court went on to say that in a situation where an agency is in place whose job it is to concern itself with the state of competition to look at prices to look at maximizing consumer welfare that any trust remedies are not that not only have very little role to play they can in fact be counterproductive because they tend to create false positives punishing conduct which actually has absolutely nothing to do with exclusion what the court said in her eyes and goes double here it applies exactly because what we have here is a highly regulated industry and the california p and sony paying very close attention to what's going on here and we've cited the decisions in our brief and i encourage the court to look carefully at the language there because the decisions and there was one in the l e v market just very very recently and ten years those decisions are shot through with a strong concern for the competitive situation for not allowing the utilities an undue advantage for price for maximizing consumer welfare and for the reliability of supply to all customers and also because i've read so cases and that you can certainly find support for the proposition but let me ask you whether there is a distinguishing factor here not present  and that is that the p t had apparently approved the use of ratepayer money in order to encourage p g and e need to develop alternative fuels and that made p that your client essentially used that financial aid these are approved by the regulators to exclude from competition competitors that didn't have that financial h but the problem is that when you get down to analyzing the specific alleged anticompetitive acts the case falls apart so to speak there's no there there when you start taking a close look ing this case one allegation at a time in fact the judge below specifically acknowledged this principle is that excerpts of record dash to a one page eighteen and said he was applying that principle well that that rule of this should have changed the result on this theory so this is a theory without an application here and that's why it falls apart and secondly i heard my colleague states something that sounded to me like he was saying that of the claims here there was not enough substance to put anyone to the expense and time of discovery they weren't properly play but now i'll move on to the allegations and then can offer some evidence to support them then you can get the summary judgment or even to a jury the problem is the allegations aren't here so there's nothing to do discovery about specifically what's missing  to forty three is they're saying that he and he sat across the table from specific customers on specific days and made specific allegations about them they said we supposedly said well the technology doesn't difficult to make out a valid disparagement claim when the disparagements at issue are made to specific individuals about one competitor because i think the thing that we have to keep in mind particularly in the disparagement area but really  case yes i heard my colleagues say excluded liberty but that's not what the issue is here that the any trust laws don't and exist to protect competitors they exist to protect competition and there's an it never revealed that he had a vested interest in that particular issue i mean it pretty much said you know hey it's sort of like finest witness to the traffic accident i don't know either of these people and i say the light was red unsafe and i'm really worried about that so i don't want to go forward what the allegations of the specific leaks there is any chance to answer the customers react exactly the way judge or scanlon suspected they would in the american professional testing case they came straight to liberty and said you need not to trust p g and e cuz they're out so out there saying some bad things about you vast proof that there was no damage even to liberty let alone to competition to other short comics quickly before we move on to a refusal to deal number one i think judge also was correct there is no factual allegation here showing that these statements were made to customers without knowledge of the subject matter these people were not completely on knowledgeable about this this technology and they were about to invest hundreds of thousands of dollars in these machines and these were highly educated people that were taking a very close  look at this stuff but the single problem that's most obvious it seems to me is reasonably likely to excuse me not reasonably suspect of all of neutralization and where this really jumps out is they talk about one of the cab companies and they say well if he did any representative said she is your technology safe and they say even in the briefs well that guy knew perfectly well it was because he'd seen a demonstration well the question that that raises if if there is meeting that is a demonstration of the technology should have been enough for us to know perfectly well it was site why couldn't they give the same demonstration to their customer improve the technology w there not and i was wondering about what the truth is the defense there is a concern for safety reasons as between the two different technologies is that right now the words the liquefied natural gas mean would it be a defense of p g and e representative knew that they were on had fallen on hard financial times and with simply offering his opinion that you know you better be careful dealing with this people because they may not be around a year from now move on on the subject of not having the money once again your honor there are any any number of ways to prove to business partner that you have the money to do a deal that's clearly reasonably susceptible to neutralization now on the specific site that issue the court mentioned earlier the policy that we had in the san jose division in order to protect the reliability of supply to everyone to limit requests off the distribution lines to twenty p s i g i want to emphasize that's off the distribution lines it has nothing to do with the transmission lines therefore the comment that was made in the brief that well it read straight a written application would have been futile anyway because as you say you had this policy it would have been rejected that's not true the transmission lines were still a possibility but what what has to be kept in mind here is this really a two part system the transmission lines are really for taking the supply and moving it over long distances it's the distribution lines that are really intended to get the gas to the customers saying you can't just tap into a thousand p s i g line with a regulator for fifty p a size gee that's not what transmission lines for that's correct your honor it is very difficult and very expensive in some cases extraordinarily expensive to tap into a transmission line it's technically possible yes the application this correctly filled out and we're paid for the engineering work then we can find out exactly what's it going and going to cost now  other point before we talk about desoto it's the significance of this and it's supported by our declarations that the transmission line is really for moving the gas in the distribution line is for getting it out is the default value when someone makes an initial casual call to us well what's available here the default value is going to be the distribution system it's only when you go further and say well i've got to have fifty p s i g here what is the transmission line nearby how far away is that what might it caught the facts when people started to take a look at the other options and what judge also found very significant if you read it the order was the mission dropped that's not the conduct of someone who's trying to get the gas rather than set up an antitrust flying i think judge also hit the nail right on the head here when he said why should the massive instrumentation of the sherman act trying on of the conversation like the with no no and with your own witness that he knew there was a high pressure line in the neighborhood any didn't do a thing zero to clear it up and that really constitute a sherman act violation at the reporter's transcript september nineteenth two thousand and two at page thirty for a line twenty to twenty five it is undisputed that liberty knew that there was a transmission line in the neighborhood they s subject we sent them to application application they knew perfectly well was essential for mission straight they did nothing they're not in a position to say they knew that that application would be futile because carol please testimony was that i knew perfectly well we could get that data i was never concerned about that in fact least that i think we ought to go ahead and do the trench to make the connection to the transmission line they point to a consultant who said well it kill deal our inability to get the gas but harold late they can't create a tribal issue by contradicting their own evidence terribly sad story part co inventor in a partner in the company lee are basically the principals of the company i can't create a tribal issue for summary judgment by contradicting their own evidence and also quickly on that subject since my time is running  out they haven't had time to so does three is that from mr gillespie is that the deal died for completely different reasons it's that it came as news to him that there was any issue about gas supply quickly on the subject of reid's theory  what happened here taking their evidence is true since we're on summary judgment was that there was again that initial casual phone call they got the answer that was dictated by the distribution line twenty  then went in and asked a different question they didn't say how much can we get for our machine they said one of the lines nearby well gas when it moves out of a pipeline every foot it travels the pressure  there's a forty p s i g line is not to say you can have forty p s i g at your machine inside the building but anyway they were told that there was a two line that were available including a high pressure transmission line once again they did not think this is not the conduct of someone who believes that they're being blockaded by utility this is much more the conduct of somebody trying to set up a loss or they can say that the application would have been futile the one they knew thank you i'd like to just respond briefly to a couple of those points in the discussion of trinkle i think the letter we sent to the court covers the legal issues pretty well there but certainly i would not agree that we have the same sort but you know impede p g d building where they can go and well right but but but in terms of what we're talking about here we don't have the type of regulation that you saw in trying to hide here we're trying to pay the retail price like many other industrial customers do to do exactly what which is sell natural gas and that's what's going on here mr kiki i forgot to ask you when you were up the first time can you give me any decision from any circuit upholding a predatory  theory when the prices are merely advertised and never actually charged no i cannot have and i was probably a case of first impression on that theory well if it would be a first case of first impression on that theory if we brought just a predatory the standing alone may not be enough to create an opposition can they be used to help bolster the inference and that's what that's the role played by some of these other allegations and that's what should have happened here i'm not saying that this can never be denied probably the transmission lines that seem to be we've got a pretty strong jury argument from the other side the fact that if you believe this fact and you vote for this fact and this fact well as in snake river then the defendant should win but we aren't yet at the point where we make the jury argument for the trial and one of the facts of us there's one big difference between the facts of the snake river and that is that the transmission lines the electrical transmission lines the grid existed throughout the area to be served by the snake river  cooperative and it was just a matter of asking for permission or agreement from pacific power to agree to wield the power across the existing infrastructure what's different here it  is that it isn't simply a matter of tapping into the nearest available gas line because if that's the transmission line that's going to be a whole lot more work and so on then if it's a distribution line then the distribution not at that stage now thank you very much