and in opposition to the first motion and from all the evidence in support of the class motion before ruling on either or both and so therefore the court has an affirmative duty to that and we was merely a formality and the plays of there should have been given an opportunity to remedy that error in the court and held that there was sufficient evidence showing issues of material fact quote even so all of it may not have been properly presented on summary judgment close quote here by direct contrast all of the summary judgment evidence including the expert declarations were properly presented  summary judgment and i have trust family motion they were also in support of the cross motion for summary judgment so they were both there for a few times no well they were they were fifty six f motion and then before that ruling occurred before it was even heard the evidence was filed so we also believe that the district court misapplied the standard and we actually have the evidence we were getting signatures to the declaration to file in opposition to the end of trust injury motion and they also supported because briefly through that time frank on september twenty third the court found sufficient practice requiring the jointer of twenty five new corporate pallies on october twenty eight  agents and control the fees or commission rates the one of the declarations came from a former sales agent of two of the defendant or two of the corporate pallies he described their express agreements to quote market windham or listings over any not on when to be listings close quote another insider a former seventeenth more quickly than on the nineteenth more trickle down on the twenty fifth the twenty seventh october by october tenth on october fifteenth they filed their first alleged cross motion on october tenth i believe that was stricken is over like then i believe the second one was filed on october fifteen convinced me you need that here's the initial round of discovery you guys the deposition z international route of discovery that's may twenty ninth of june five after that come back and tell me bring a motion if you need more discovery that deadline had long  experience had already taken all ten of their depositions before we brought our motion and if yours and did not did not bring a motion asking the court to take more depositions make your sense of it of the set of discovery requests that we answered and then they submitted a second request and at that point we have jackets saying you guys cannot ask discovery requests that are so incomprehensible that went before a motion to the judge packman on a motion to compel she struck their first motion because they completely ignored the local rules that she told  they brought the motion again and she said you have asked way too many in iraq you can't have one in iraq a tory that says please describe all of your business plans that all of your business carries and all documents relating to it and any discussions you might have had that's not one question and it's not a question that can be answered so she never granted any of their motions to compel what she did is she said we have talked about summary judgment from day one this is a summary judgment motion has been timely filed you have a deadline to respond and you know i think the other thing that probably and she probably did you could reduce your patience but here's an odd question for you the plaintiffs have this evidence in their hands they have a deadline of september sixteenth to file their response know on september sixteenth i'm looking forward to a big response was i have three days to prepare my reply so on september sixteenth i get a stack of paper about this suspect and i'm thinking great this is it so i start looking through it and what i find is this much response to the motion for summary judgment this much is their motions to compel now why is it that they have trying to draft new motions to compel which could have been filed next week but not time to motion yet have to file an affidavit and you have to say judge this is why i haven't been able to get the evidence this is what i think it means this is what i think it will do they didn't do it their request was so short that i put it on pages the complete request on already got the evidence in your hand and you're saying judge i need more time to present it then you would bring a motion for the court for an extension of time which i believe rule six would permit to say judge we need more time this is a big case we've got all this evidence coming into we have an extra week they didn't do that they simply filed document after document after document without any explanation without any motion and their argument if you accept it well if you accept that you should publish it because it would really really create a new procedure that i think a lot of us defendants would appreciate and that is after the deadline for my summary judgment motion if i come up with more evidence i can just pile more evidence and then file a rule fifty six separate and since the evidence exists how can you not consider it in fact really as a practical matter when i'm moving for summary judgment after i see the other side's reply there's usually a lot of things i'd like to say and a lot more evidence i'd like to bring it so if you're going to open the door for me to do that as a subset of right that would be wonderful but what about the movi party does the moving party get to file and you reply brief after every single new bit of evidence comes in when the sun when it starts to september sixteenth because that was the deadline in the rules and the court was actually well within its discretion  whatsoever due to find that the court abused its discretion in saying gentleman i told you in our initial conference enforce the rules i told you again and i'm going to enforce the rules now there's one thing that i think you have to point out in this of business a plaintiff in an antitrust case can't get another competitor come in and say it's my opinion that their purpose is to put us out of business and say while we have evidence and we went into great and after an objection to that call for a legal conclusion he answered time after time it would be my suspicion that they do well do you have any facts no that was their answer when we sent them in a rocket towards saying please take the fast one which you base violated in any anti trust law because women will never get so they can't even meet what this court points out plaintiff stocking forget is you have to identify the specific context but there's more because the second thing that we have to person companies still go home and the reason they do is because the supreme court this circuit of just about every other court to look at it has said a competitor can not to another competitor for fixing prices paid any minimum level period why because if we jack up the windham rates they can only benefit which is why god made pearson in his deposition the export in our previous best doesn't hurt us any could only benefit macpherson either by raising the prices of a competitor or by limiting the degree to which your competitor competed and this court and the supreme court have regularly said if that's the case you can't get there so all that talk does that it's sufficient to prove the essential elements of the contract and that is in fact the test but the essential element here is some witness jane you in fact signed it some witness saying you in fact did agree to this so in order for us to prove a contract we would have to have some witness saying there was mutual agreement to this contract on these terms if someone else and there are lots so the court said now that's not sufficient inference or draw an inference and i thought that was a kind of well except for the fact that a contract itself in the oral or or in writing she never said i agree to a contract that contain these terms contract there's no question they had a copy so the summary judgment on those who won the contract not being signed was only brought on behalf of the individuals with not signed a contract so there were a couple of days of peripheral crimes left over that the court decides i'm not going to keep this case in this posture over a claim against three individuals for taking twenty customers so if i could finish by just commenting briefly client the big question here and i recall the hearing in the judge's frustration is they claim in their in their brief that we don't disclose anything and yet as we pointed out the very evidence on which they rely shows that they did in plane is well there was other information like social security numbers that wasn't provided and what drugs packman asked at the summary judgment hearing and did not get an answer to yours can you tell me why it is that this additional information like a social security number is the trade secret isn't the trade secret the property address the owner at the least eight in the least amount because isn't that what a competitor would need in order to compete in order to use the information in other words the trade secret only protect information to the extent that it has value people social security numbers really doesn't have value computing property manager and so her question was tell me why it is this information that you claim was not included in the information that was sold to appraisers and anybody else who wanted to buy it was secret and they couldn't so and again i think that that's a that's a fair statement and i don't think in their break that macpherson has made any attempt to say this is the information that was not so think they've done that they've been at least made that argument although i don't think it accurately but they haven't taken the next step to saying here's why that subset of the information constitutes a trade secret here's why knowing the utilities would be so important when the utilities are general to the area so no needless to say the rules don't say that there's been a suggestion that the plaintiff in cases like this needs to be entitled to the broadest discovery and that that's the concern that this court ought to have there's another concern of course and that is there's consequences for being a defendant a lawsuit like this the consequence for being winter and the consequences are the press reports that when the press reports that they don't usually call for comments from the defendant second this case is send them a copy of the complaint which they didn't have to thank or takes notice when you get to statement if you're a franchise recruiting agent here about your competitor it's your pain your own internal records that's what happens in these lawsuits it's a big distraction for management unit cost a lot of money and the appeal has no merit and the standard for that is really well set forth in the reply brief of appellate where they say that the appeal is frivolous it clearly has no merit and the result is wholly obvious i'm not going to try to persuade you of that because if you don't think that now then it obviously is that we believe that a guest at the trial court there may have been justification for doing it but at the appeal court to take the position one happens to rely on the evidence they have just seen thank you fast they didn't wipe out any real estate company they wanted to that was a statement by the pelleas that was not mr jackson's opinion also i thought that the conversation