probably means somebody had some questions about how it should come out so it's helpful for us to hear from you just knew some is also on the line as is a judge determined scanlon who assistance in helping us discharge our duties but this is a unique experience and privilege and pleasure for me to be able to sit on a panel with my former boss judge  scanlon i guess the lawyers on the line might have heard may refer to him as boss when he joined and that's always the way that i will think of them he has always told me to call him dinner made and i have always respectfully declined i will always call and judges  to leaning in and looking down the bench and seeing him on the other end of it but i'm just thrilled to have him with us and the lawyers are in for a treat it's a special privilege for me to have him on the panel with a so thank you judge for being here and case we told you in our notice that we're going to give you two minutes of uninterrupted argument i'm sitting here with my stopwatch so i'm going to try to abide by that and with that takes whenever including decades into the future counsel i'm sorry this is this is judge newsome so i guess i've got a question for you i took in your briefing you to be making two slightly different mcbride releases you've said but now it's and then the nd argument and it sounds like the one you're focusing on here is what are called temporal i guess like a temporal distinction you keep saying on a going forward basis sort of post two thousand and thirteen is that really the horse that distinction means that there's that temporal distinction that i'm attempting to draw between we didn't cost of insurance rates back in two thousand and four and ongoing obligation to reset cost insurance rates going has a kind of a range of complaint right i mean it did have some allegations of what i'll call the sort of garden variety breach of contract and you know sort of enforce this thing in conformity with the policy terms stuff like that and it certainly did mention cost premium and the cost of insurance paid kind of a mechanical role in the fact that sometimes policyholders would have to pay more than the plan premium but it wasn't in accord with the case which is really about the premiums they would have and i look at that and wonder and appreciate your response when it says class members acknowledge that they are releasing both known and unknown and suspected and unsuspected causes of action and are aware there may or after discovery legal record of the claims around these presently known or runs are unsuspected or facts in addition in other words this releases extraordinarily broad that companies often settle class actions even when they genuinely believe they have done nothing wrong they think they've done nothing wrong but they realize that the risk of a bad outcome is significant enough that they go ahead and s the nd truism is that when companies do settle class actions they bargain for the broadest and longest lasting peace that they can get because the last thing they want to do is pay a lot of money to settle a class action and turn around the next day or the next week or the next month or even the next decade and be fighting the same sorts of battles that they had just resolved and those truisms apply to this appeal that's before this panel today because if you look back to two thousand and four after general had slaughtered through discovery slog through the motion practice and reached a class wide settlement agreement its bargain for the broadest and longest lasting peace it could get that mcbride case was kind of a kitchen sink attack on not just how general worth sold these insurance policies but also how it ministered those policies over a number of years and so when general negotiated the settlement agreement it negotiated a release and covenant not to sue that looked backwards in time which virtually all releases do but this one also look quite consciously forward in time as well and it did that in at least a couple of different ways it says in the the settlement agreement does in the covenant not to sue provision that class members were precluded into stopped from suing over released claims regardless of whether those causes of action accrue after the agreement is approved and then it also in this pre settlement policy administration provision gave earlier so i mean frankly as to the substantive point that i was making that the two causes of action just sort of don't arise from the same sort of substance i don't really think that i agree i mean it seems to me that cost insurance was in play in the genworth wasn't adjusting cost of insurance according to mortality tables that come out on an annual basis so how could we possibly have known about that in a way that would have been accomplished in the st suit and the only way it seems to me that maybe you can tell me but the only way that that springs to mind that you can make that work is to say that well it's just all part of the same continuing course of conduct is that right and if so do we know whether that whether you were doing then what you are alleged to be doing now so i would agree that when you're looking at what happened after two thousand and four because of course the focus now is on two thousand and thirteen forward but you could say the same thing about a lawsuit that had been brought a month after the mcbride settlement was in force the same arguments would apply then it doesn't matter and so the temporal is really not so much about whether it was a decade or more later it's what it after the settlement was was was entered into and i think there are a couple of of breaks on the concern that i am reading between the lines here in the courts press about or same nucleus of operative fact you need to have some kind of of overlap not literal identity but overlap between the two different types of factual predicate that  you're talking about and when you look at the record in this case what we do know is that plaintiff itself t v p x itself alleged in the initial complaint that it filed in the eastern complaint that's not that's no longer an operative complaint in this one case and it's not an operative complaint in the sense that it's not the operative pleading but admissions that are made in a superseded complaint are still admissions  and what the t v p x said in that initial complaint was that st we're going to allege a class period that stretches back decades back really they said and the hearing was just land yeah we we amended that complaint because we learned the facts and ways that were no longer true and that accounts for some and i don't quite remember them saying it quite that way i think what they told judge land is well we don't really know what changes if any general has made and how it applied how it how it calculates cost of insurance rates and it a minimum this would be in my view a necessary but not sufficient condition they would need to allege some kind of material change and how genworth went about setting those rates if they said that previously they did it one way and now today they're throwing a dart at the dart board and coming up with another way that would be we'd where in the record is that the main thing i would point to again is the initial complaint the t v p x filed which presumably it filed only after it i'm sorry i don't mean to interrupt is there anything else other than the complaint about what general has done post two thousand and four not that i can recall ok but what about what about preemie i guess my question is i want to figure out if this is the same course of conduct it seems to me that that matters if it is the same continuing course of conduct that with a live pre two thousand and four and that remains live now then that's a good fact for you if in fact you know you weren't really doing pre two thousand and four what you are alleged to be doing now with respect to mortality table then i think that's a good fact for your opponent and so i think judge martin is asking you how can we figure that out what was happening pre two thousand and four and post two thousand and four well the district court raised that question in the district courts discussion with  access council and said well it sort of floated the idea maybe we should have some discovery about this very question what has happened since two thousand and four and two packs of council demurred said we don't really want to go there did not really take  the district court up on that on that concept and i would also say that that that what we would be talking about there is if you suddenly wanted to allow discovery into what gener has done with respect to cost of insurance rates and how it's calculated those rates for the last fifteen dollars or more years then generous would be deprived of the benefit of the the release and coming out not to sue out in the st place because it would be doing exactly what it would have to t in cases like adams versus southern farm bureau what the court did and what this court did here was compare the records in the two different cases and and determine that there was enough overlap between the claims in one case and the claims in the other case that whether under the doctrine of a strict out of or release that those those new claims had been extinguished i understand that and so if we undertook that and we compare the two and there's a big fat miss and about how are your clients calculated the insurance rate and it was your affirmative burden to show that basic allegations of raising rates when you shouldn't raise them or failing to lower them in the face of supposedly improved mortality those are that is the same course of conduct and both complaints and that's enough under cases scanlan could you remind us of the status of the record with respect to the discovery issue you mentioned that was waived by t v p x give us a little more context please sure well the st is a point to the absence of something which is the absence of any request at any point during the few months that the case was pending in the middle district of georgia from t v p x for any discovery at all from  from generous that that wasn't issued to us the they didn't ask for permission to issue it and then when the district court raised this question it was quite clear where the court was going it was it was wondering about the same pursue a counterclaim against t v p x we're comfortable resting on our briefs on that point but i wanted to  and the minute that i have left i wanted to ask if the panel invite the panel to add to asking questions about that i actually do have a question about is there a procedural problem with that it looked to me like you moved to guess my opinions have to really the one that matters here but to me the real question is whether there's a viable claim that passes the futility test in the st place and we've tried to explain our briefs why why it does pass that test but you've been so this is judge news and i had the same question you understand judge martin's question is you were seeking to i'm in a pleading in a case that had long been closed that just seems weird right i mean i wouldn't i would have thought maybe not because the the final judgment entered in mcbride expressly said that any disputes over the interpretation of this agreement need to be brought to this court now i suppose we could have just bought a brand new lawsuit a breach of procedurally would have would have made any any difference at the end of the day i would agree though that this is an odd situation it's one that is not not often raised  thank you thank you very much thank you you a few points your honour's beginning with this question of what was in the record but well i think i heard counsel concede that there is nothing in the record about what generous cost of insurance adams that adams just sort of lined up allegations against allegations and said looks the same by the failure on your side to pursue discovery particularly in light of the temporal claims that you are making what's your response yes on our  may have slightly misrepresented what took place below what was happening at our argument was we were asked do you think you win on the law even if aside from discovery a show and we said yes  discovery process and finally i think i'm part of one then aren't you bound by the state of the record at that point and if we disagree with you in terms of the interpretation of what the reach of the we appreciate the presentation of this well argued case even under these circumstances thank you