trial and this is undisputed there is no evidence and trial about the individual injuries incurred by each of the six individual plaintiff entities and there's plenty of evidence about the parent company which was one of the plaintiffs sure and these two issues actually go hand in hand your honor because there was there was not evidence of which entity purchased the products at issue and well it does because under the f b i you have to you have to be able to trace where these purchases are coming from to see that they are that you've satisfied the requirements of the f t i a i thought it was pretty clear that it was the parent specification of who that was there was testimony that these numbers came from a database that contained purchases by all of the best by entities and in fact when this case was originally filed one of the plaintiffs was the best by china and  be a company that was incorporated in bermuda and located in china that's at eight o nine when the the amended complaint was filed that best buy china plane if disappeared from the case but the problem is that we don't know who these purchases in this database we don't know who actually made these purchases and if the purchases were made abroad by that best buy china  s the purchasing or some of the purchasing sufficient to be proving damages so your honor i think it's helpful to look at the seven like the parent company but she did so testify right not about china well there was no special specificity as to who she was referring to that it was just best buy and your honor the reason i purchased and there's again there's not very much specific information about this because if you remember at trial best buy spent the majority of the trial trying to prove importation through to shiva corporation and purchases from to shiva ultimately the jury found that to shiva was not a member of the conspiracy and so all of that evidence goes out the window for what we're talking about today but we have the other the conspiracy that is at issue and that's that's there's no dispute about this the conspiracy that the jury found it was asked about in question to the special verdict form it's just the panel's conspiracy best buy may have purchased from other subsidiaries owned by the same corporate conglomerate but they didn't buy from the conspiracy because the conspiracy itself w of an it seems like there aren't other cases that i'm aware of that deal with precisely arp question here because it's clear that import commerce includes or would have included the sale of these components china have bought them it was not part of the conspiracy just was a buyer manufactured a product that was imported into the u s that wouldn't be covered but what's weird here it's sort of in between because ham star never sold directly into the united states but some of its coconspirators it seems to me did place these components into more finished products that were in turn sent to the united states so it's kind of halfway in between so some of the coconspirators were manufacturers of the finished product as well as a component and are you aware of any cases n and the third circuit cases i think you're probably referring to animal science right carpet group interest center so those cases the very much those cases talk about how and i should mention by the way we're just talking about how to define important commerce for purposes of the import commerce exclusion but those cases talk about the need to focus on the defendant's conduct rather than the plaintiff's conduct and then they also talk about looking at what market that the conduct is directed at these these cases though are still consistent with this court's decision in us versus shown the the criminal  the appeal of the criminal conviction of the tronics as well as the motorola the seven circuits decision and motorola because those cases from from the very beginning the third circuit for example interest  in two thousand and two noted that import commerce generally denotes a product or perhaps or service that has been brought into the u s from abroad site three zero three inter center the third circuit cases though there are f b i cases have not been kind of the standard price fixing cases that we're talking about the third circuit's f d a i cases like carpet group for example the wrongful conduct there was not price fixing of an actual good that's sold the wrongful conduct was a conspiracy to monopolize the import market for for oriental rugs and so in that instance the wrongful conduct itself was trying to prevent import commerce to to make sure that retailers weren't able to actually import oriental rugs from outside the u s and so that's why the third circuit said don't get hung up on this notion of physical importation of of goods you can have import commerce or you can satisfy the import commerce exclusion if the wrongful conduct you're looking to regulate is is directed at the import market because that does that answer your questions or i don't know if i quite see the cases the same way that you do it does his best  answered i have a question as to the conduct in this particular case that that deals with the targeting theory so what was he as opposed to the cases you talked about the case in the other one was the and most on his products case it seems like in those cases there was maybe not the animal science but the we swing case that talked about ashong shown us thank you that talked about in those cases they actually had negotiations in the united states they had  united states specifically your honor we think that there is insufficient evidence of that here if you look at the one piece of evidence that is cited in the best by plaintiff's brief on this they say that there was evidence of e mail communications that demonstrated that the cartel targeted the u s if you look at that one e mail that they cite and i think it's a c r one online it's an internal e mail by l g talking about a meaning that they held y well it's paragraph four c and this is what hans starr agreed was the factual basis for its criminal liability that during the relevant period the exactly what was what hand star agreed to and it's criminal plea agreement but it doesn't specify what customers and the best five plaintiffs need to demean your claims i'm sorry go ahead is that we know what the conspiracy targeted the conspiracy targeted the customers who purchased panels and the guilty plea doesn't specify what customers it was whether in the u s or elsewhere and the best buy plaintiffs have the burden of tracing their purchases back to either import commerce that puts them outside the f b i and if it doesn't trace to import commerce then they have to well of the targeting theory now i grant you that so far the seconds third circuit seem to have accepted the targeting very what i would say your honor is is there except the targeting theory in cases where the conduct does not involve actual sales of goods if you applied the targeting theory here the target of the conspiracy was the panels market and that was outside the u s and the other issue in response to what you you're one of your questions showed toward law i think we need to focus on on best buy and their ability to trace their claims back to either import commerce and if not import commerce then satisfy the domestic effects exception and we know in this instance actually that the jury in answering no to question five of the special verdict form that there is a difference for purposes of the criminal case what the department of justice has to prove and what it can use as evidence of import commerce in that case the d o j and frankly in in class cases it in class actions the plaintiffs in a class action they just need to prove import commerce to someone in the us and that's sufficient for them for per proving import commerce but when we have best buy here who has an opt out plaintiff who opted out of these classes and is suing on its own behalf to recover for four purchases it made it's not sufficient to to demonstrate import commerce to anyone in the u s they need to demonstrate that their own purchase is traced back to import commerce and if they can't do that then they need to satisfy the domestic effects except it's not like where they get you know foreign companies who do this you know are just immune from from u whether whether whether they were going to subscribe to the targeting theory or not and i hear your honour's i think we don't need to get to that again because it it's clear what the commerce issue was it  the sale of of t f t l c d panels priced fixed panels outside of us in asia that's non import foreign commerce and so that would that doesn't bring it in within the import commerce exclusion but then you just you look at it under the domestic effects exception and in this instance the jury said they didn't find that did you wish to save a little about on time i do your honor that's all right thank a were particularly point and you noted many of the portions of the record which i want to emphasize in my time which is that there was substantial evidence in the record that hans star as a co spirator in this t f t l c d conspiracy participated in a conspiracy that engaged in import commerce and that means the f d a does not apply we see the evidence in the record as under that theory something conduct have to be specifically the conduct that gives rise to your injury i think that is correct but that is not limit ok so in the in the criminal plea deal there is nothing specific to best use there no of course not your honor what is in the criminal plea is the background of the purpose of the t f t l c d conspiracy watch what which was to target and raise the prices of panels to be imported in the us and because best buy has brought forth sufficient evidence at trial that best buy purchase directly from the  hand star that that is all we need to show well that's the question in fact yes i think we may have some different all of us to from reading some of these cases i under shown i'm not sure if that's the right pronunciation but i think we're all talking about the twenty fifteenth case from the score and i'm working on page seven fifty six where we said the defendants claimed that the transactions did not target the united states targeting is not a legal element for import trade under the sherman act so i'm not sure we're targeting comes from in this circular whether we're free to use that as an element of import commerce i would look to some other language in that same shong opinion your honor which is i think at and eighty nine where this hand me this court looked at law from both the seventh and the six circuit to conclude that you know transactions that are directly but between the u s purchaser plaintiff and defendant cartel members when those defendant cartel members were involved in importation of fixed priced goods that is import commerce says fine by me cam the sixth circuit says so too or i should say this court says about the six circuits definition of import commerce that import commerce includes transactions between foreign to fund producers of t f t l c d s and purchasers located in the we have the conspiracy and we have the conspiracy to fix the prices of the t f t l c d panels which are then incorporate incorporated into right well not for the federal claims yes there would be no there's no federal interest in it's forget about distinguishing the state because it really doesn't make a difference ok we do have still you know that ok look i'm trying to focus  sold it to best buy in the united states right yes because the motorola plaintiff was not the entity that had made the purchases it was the motorola plaintiffs foreign subsidiary right and here best buy from the testimony of ms wendy fritz which she was the key fact witness from best buy about the various entities from whom best buy had made purchases including many of the  point and i think perhaps judge moore last question is directed to this it was clear that she testified generically that best buy a lot of stuff that's well armed but the question is whether she was specific about what part of best money went subsidiary whether it was a foreign subsidiary the parent company or a particular united states subsidiary who was it and use their testimony those that specific the testimony is that all six entities that are the plaintiffs and the second amended complaint all of which are u s based and you can see that in the second amended complete that's in our excerpts of record best buy china is not a plaintiff in this case and any purchases made by best by china were not included in the data that was gathered by best buy and that was purchased excuse me that was reviewed and became the basis is that clear in the record from miss for instance testimony yes she talks purchasers know all of the because best buy is purchases are made out of its headquarters in minneapolis where all of the six entities are based it was not limited to that to upper midwest that was her personal job why and why isn't hamsters are human then valid about sort of excess plaintiffs if if every bit of the evidence is aggregated for sort of a best buy parent company why are the individual stores or individual subsidy or use have they proved their own damage and ritual i would like to be clear about is it make any difference there is no allegation from hand star that there was any double counting it doesn't make a difference figuring out which of the six entities suffered which degree of the injury all that we need to show and what we did prove is that each that that they actually purchase from and tell me the name of the person you know the coconspirator from whom they purchased i don't know if i have specific pencils from every particular  where the testimony came in for each particular purchase or let me find it i know it's something that was mentioned in the post trial motion order so best buy purchased directly from samsung lining all the different entities and then testimony that best buy had purchased from those entities came from both ms fritz and then also from best buy expert witness your bernheim who analyzed all best  purchases and and also the impact of this cartel on the prices what was the evidence that it was best buy in the us and not best buy in another foreign area that made these purchases big because they they weren't they weren't entities they were plaintiffs so they weren't included in the damages pola data purchases but i think hand stores are human is if they were the you have to prove obviously that best buy usa the parent company made the purchases and because if you didn't then the act wouldn't apply that is what dad i was told and that is the data that was the basis of all of the experts analysis including hand starts and i would like to know we i mean it's i was a little surprised to hear this argument about best buy china because it's not it's not something that was raised by hand star below because they are not a plaintiff in this case and there was no their data was not relevant to the damage that it has if someone's not a plaintiff in a case doesn't make it evidence that they didn't participate or that they weren't the buyers and they wouldn't be a plaintiff in the case because then they wouldn't have any standing the the act wouldn't apply right if the purchases have been made anything to do with betting on china did hands are put on any evidence that any any of these products were purchased by best buy china in the record are what provide evidence that the jury found that this involved import commerce so the jury answered that yes that the conspiracy involved the panels and finished products and that were imported into the us and that these  panels and the importation of these finished products had substantial intended effects in the u s it is am i correct in understanding that only the coconspirators used these components in finished products that were important to the u s that hamster did not manufacture any completed products that were directly imported that is correct i believe that that is correct but i would like to point out that one of hand star strategies in this defense in a couple of different argumentative strains is to sort of take a myopic approach that what's at hand star do when you're in a conspiracy and you've pleaded guilty to being in a conspiracy it's not just about what hand started it's about what everyone in the conspiracy did and because other members of the conspiracy who both pleaded guilty and as you noted who settled with best buy admitted that they did that they did import those finished products and those were purchased directly by best buy so that's that's what we need for for the import previously that the plaintiff and motorola was not entity that had made the purchase it was the parent company of the foreign subsidiary that had made those purchases overseas we did not have the language that this that this court used in implications of your argument and whether those implications are really what congress had in mind and let me give you an example that i can't take credit for can say this was an example that was provided to me but if it's one that worries me let's suppose that in japan there is a conspiracy to fix the prices of gas caps for cars and they ought to be worth a dollar but because of the conspiracy they actually cost ten dollars and they and so the company at issue it make cars but some of their coconspirators actually make cars which are then imported into the u s and under your theory this ten dollar part with thousands of other components and a fifty thousand dollar car all becomes subject them to anti trust liability is that it just seems the tail wagging the dog potentially and that concerns product is big in my example it's otherwise identical so in your hypothetical the gas cap manufacturer had been in a conspiracy absolutely the same thing everything's the same as in this case except that it's a tiny part in a but i mean so i guess it's a theoretical question really is that what congress intended to encompass with an important commerce or not it's a good question because it's drawing the line you know what the date said what's the outer bands of this type of liability i mean there i don't know what the outer bound is either but i mean there has to be sent kind of lines and it has to have something to do with congressional intent yeah i think i agree i don't think because the facts of this case and the f b i issues are identical to sean because it's the same conspiracy but it was shown they went through the you know under their authority targeting theory they went through and had a lot more actions to show targeting th we have here well we have as judge word love noted we have paragraph four and multiple provisions of paragraph or enhancers guilty plea that they use the purpose that the substantial basis for the verdict i'm sorry finish your answer i thought you were done eye problems for us so that's that's fine i just what we have here that we didn't have in that case because it was a trial there wasn't a plea we have this detailed factual basis that where enhanced are admitted that that the purpose of its involvement in the conspiracy in the purpose of the conspiracy was to fix prices too important to us i thought there was also evidence in showing again i may be wrong there's a lot of material floating around in my head that the component parts were directly imported into the united states not solely through the finished products and that's the distinction that's that's what makes this case different in my view so am i wrong about the facts are showing now i think you are correct ok those criminal defendants were prosecuted for their importation of the panels but here we have coconspirators importing finished products and that's the basis but it's all about finished products the component parts in this case none of the coconspirators as i understand the facts export even to the united states imported into the united states the components themselves alone without being incorporated into a finished product i'm not certain i think that is correct but those same coconspirators incorporated themselves those difference if i may say thirty five seconds on our pastor defense i would just point the court to the minnesota supreme court's language and philip morris where the court analyzed a challenge that was based on standing which also relates to injury and stated unequivocally that the court rejected a passthrough defense because the injury happened and the actual damage happened the moment that that plaintiff overpaid for a price fix good and so i ask you to look into citing that issue look at the conclusion of the court below and how it  defined actual damages under the minnesota into trust and look how the minnesota supreme court defined actual damages is not allowing an analysis of any passthrough and i would ask them that you affirm the judgment in favor of best buy  the sherman act claim and reverse and remand for consideration of the indirect purchase damages free from this offense that was clearly is not something that the minnesota supreme court believes exists under minnesota that conduct is what the domestic effects exception is intended to address and i worry that what we are doing here is enlarging the import commerce exclusion to the point that we are basically eliminating the domestic effects exception and the legislative history behind the f d a we cite this in footnote two of our third the third brief response in reply brief the f t i a legislative history makes clear that we need to give a a narrow construction to the import commerce exclusion or we will just do away with the whole point of the f d a the other point i'd like to try and come back to is this idea that the best buy plaintiffs imported finished products from coconspirators i'd encourage the court to be precise about what we're talking about the conspiracy that is at issue in the the panels and to finish products so those were other subsidiaries owned by the seam so i'm score pritt conglomerate that that ownership that common ownership in control is what allows best the best buy plaintiffs to take advantage of the royal printing exception to illinois brick and bring a claim under the sherman act because they didn't buy directly from the conspirators but that doesn't change the conduct that we're trying to ask whether what conduct whether it can be regulated by u s law or not the conduct that we're looking at is still the price fix on the panels and that's the commerce that occurred outside the s and is not import commerce and should be looked at under the domestic effects and i didn't have the conspirators looked at it when they were conspiring i mean if you go back and you look at the minutes of the conspiracy meetings  referring to the finished products there it's i mean you know i think that i see with great car example is that this conspiracy actually understood the significance of the component as being the finished product i mean they talked about like the fifteen inch monitor the notebook a monitor the television sets they were talking about the decision from motorola's is helpful on this again judge posner noted that you know it's understandable that carter lists maybe talking about the products that they're they're priced fixed input goes into their you know admittedly trying to decide i guess i wouldn't try to say is that phenom in the purpose was to inflate the prices in the united states was which is was the largest is the largest market for these products apparently and they talked about how they would inflate those prices by inflating the price of a key component of the product so the purpose of the conspiracy two was it was to fix the price of the panels it may have had the effect of increasing the effect well and but that's where you look at the domestic effects except in the jury no no the jury found that i think question three or four that there was a substantial intended effect increase prices right and nine states but your honor we don't get to that issue and lest you have import commerce that is directly subject to the sherman act well what i'm trying to say and what i'm again probably inarticulately trying to explain is that the conduct that we are looking at is the sale the agreement to fix the price of panels and whether the conspirators knew it was going to affect the special verdict form which the special verdict form asked whether there was or assumed that proving the sale of im of finished products into the u s was sufficient to prove import commerce which is a legal question right we're struggling with exactly and your honour's i think under showing and motorola the answer to that is no the it's clear what the commerce is that we're trying to regulate it was the sale of the price fixed panel right and that's in this instance that is an import foreign commerce and so you need to then satisfy the domestic effects exception in order to apply us a lot of that and all of the  evidence judge wardlaw that your you're struggling with that evidence may be relevant to the issue of whether there was a direct substantial and reasonably foreseeable effect on u s commerce but that that's the domestic effects exception and in this instance the jury was asked and they said no they no domestic effect and that's what the plea agreement went to correct the i was surprised that we had this plea agreement with the factual basis but yet the jury found answered no to the second question as to the second exception exactly thank you counsel your time has expired appreciate the arguments from both counsel they've been very helpful in this challenging