relevant market for clear and transparent for home and office use and that it had been found so liable for buying gaging in unlawful exclusive dealing arrangements and bundled rebates nevertheless parking to the illinois doctor in the district court reasoned that we as consumer plaintiff could not recover for any and accessed violations unless we first prove that defendant three m a defendant staples as the representative of the retailer class and gauging a price fixing conspiracy but is a conspiracy limited other types of exclusionary conduct we believe that was are and before i proceed to show why that is i'd like to outline the five points of error some of which collapse onto one another that the district court committed by the way had the error was the district courts in vocation and decision to apply illinois break to this case even though it is undisputed that there was no overcharge much less much less an overcharge that was passed on to us as consumers and plainly illinois bricked only deals with that factual scenario where there is no overcharge there is no danger of the police could have recovery nor a complication of allocation or portioning of damages between the direct and indirect purchasers second once the district court decided to apply the illinois brick generic private label manufacturer was excluded from the market that was what was found in the us in the third circuit case now that that means there are injuries consumers accrues once we are forced to purchase only the higher more expensive take for instance if somehow the oil manufacturers conspired with their retail gasoline service station managers to only stock premium gasoline removing unleaded regular gasoline your injury accrues at the moment that happens because now that lower priced alternative is no longer available to me to you and that's what we maintain happened here one measure of our damages is that the day before the conspiracy to monopolise happened we had our at our disposal as consumers the ability to evidence with respect to staples was that they had so i only mention it now just in connection with this price and i'll get back to that to give you a sort of shorthand answer to that the evidence with what with respect to what the pages ended up stocking was a private label tape called stockland and the reason that that's not significant here is because it's not part of the relevant market definition and the reason why it's not is because the stockland take foreign manufactured date is a mapped finished tape it's not transparent  actually our injury accrued when they choose substitutable product the generic version was no longer available and it was no longer available as a result of three in fact as a result of the monopolization exactly of exclude him attempting to exclude the page from the had the conference yeah that's my understanding i checked the supreme court docket yesterday my understanding and perhaps three m scouts will be able to elaborate on that was that it's been several months i never give the government again we'd like to know your position if you ever feel like telling us that's putting it charitably that's how i understand it but i so so far as i know no no solicitor general brief has been submitted and no decision answer sure i has been granted and i think it's getting a little bit late in the supreme court term to see those raised but i now the second point which i think ties in to what judge pies was asking me about the second point of there was this notion that the only conspiracy that would suffice for us to get over illinois brick was a price fixing conspiracy but i think as my answer just illustrated the reason we believe that was wrong is that a conspiracy to exclude a lower price competitor with suffice irrespective of any price fixing and you found as much just four months ago in the case that we cited in a rule twenty eight papers the glen between competitors at the same level of the market structure structure to allocate territories in order to minimize competition here's the here's the language of interest it is no stretch to conclude that the same laws protect customers from harm directly related to the own lawful removal of a competitive product from the market and by the way that that is also analogous to the supreme court's caved on the exception to when i break the leading case on that we cited was mccready v blue shield of virginia that was in a price fixing conspiracy and there the allegation was that the insurance carrier blue shield has conspired with the psych heifers to exclude the psychologist from obtaining reimbursement and being covered by the insurance carrier the consumer much like us sued claiming that she was therefore deny reasonable access to a competitive provider namely a psychologist and that to do so she had to pay more there was no price fixing allegation and the supreme court did not hesitate and in holding that nevertheless illinois break was not a bar test you also a few years earlier reiterated their joint it was not necessary in the english which we've cited in our briefs but the point here is not simply to look at precedents and to see if we can excerpt one sentence from here and once  from there as to whether joinder is required the rationale behind drawing or has to be looked at and the rationale behind jointer is that jointer should be required when failure to join the middleman could lead to duplicative recovery and thereby lead to the dangers of illinois brick that's simply not at issue here because three m concedes and we maintain that the retailers were never overcharged they were given a discount rebate now so there are only three types of scenarios here that could they're still not overcharged they're paying the same price for three m take that they paid before they just are not getting a discount but failure to obtain a kickback rebate is never an overcharge particularly when the rebate is alleged to be unlawful in the first place and the third is someone a retailer comes in and says i had nothing to do with this three am never approach me or i never joined i just continued buying from the pages and from there never overcharged and what's more they were never prohibited from buying from the pages so there is no point to join their here and again if we didn't have dealing with an and i just violation which requires market exclusion as a whole and to determine whether those women opposition in a conspiracy to monopolize in a conspiracy to exclude in a conspiracy to fix prices we ought to be looking at what's happening in the market at a whole as a whole  pages tape was available at certain retailers at some place in undefined quantities the question is whether the pages woods was diminished from the marketplace and such to such a capacity so that it no longer posed any price constraining competition the fourth point which i just summarized is that irrespective of how you rule on illinois brick and we can find that it ought to be reversed on that ground it was the case should still be reversed because we have a claim for injunctive relief in other words if we can prevail in showing that these rebates were on district court dismissed our current right acting because it said we couldn't represent a national class fair enough that's a rule that's of basis perhaps to deny our motion for class certification or to constrain a class definition down the road but it's not a not all the people who purchase are lone individual jonjo purchasers and the retailers have records as well because every time you pay with a credit card those items are itemized on the credit receipt that's all part of class discovery that we were planning on taking being a prevailing party and it would be up to the judge to determine and she could make a reduction or an increase of that let's start with us to make the percentage would be i have no idea your honor because this case was disposed of after three months of discovery i have no idea how much more effort we have to put into  staples today to provide them a survey of the retail prices being charged by kmart by wal mart by stance by costco all of this detail price information and then he says the purpose of the purpose is to show our retail accounts that the competitors are taking their prices up and we showed these communications including e mails from ben markovitch three m's account manager for past year saying how he got into arguments in effect with rival competitors because he was trying to convince them good morning honors my name is larry posturing and i'm counsel for three m i'm going to try and save five minutes for mr cooper on behalf of staples let me start at the beginning during the relevant period of all those discounts were about cost and three m believe they were awful nonetheless the pages which had started out with something like nine percent of the market and moved up to thirteen and then because of this success discount program allegedly fell back to about nine percent kind it was hurt and if these wholesale discount practices violated section two of the sherman act and the jury so fat the competitor was knocked out of business and that the wholesale prices then started to rise in the recruitment phase obviously if three m had not left pages out of business entirely and then was able to start raising postal prices and therefore hurt retailers allegedly passing on or not as the case may be these consumers still would have no crime even if this was a the critical problem that the plaintiffs have in this case from day one was how do you translate lower host prices into higher retail prices because it's only if there are higher retail allegations pages are still in the market it's not gone they don't allege it's gone they alleged that some customers stopped buying the pages for sure but one of these planes bought it right and stores which sells today pages and stuff now it may be that there was some stores this stopped carrying the pages and some consumers had doing you know involve themselves in search costs to go find the pages because it was less available but that's not overpriced and that's not their calling the claim is that somehow prices went up and if you listen to the argument carefully their arguments to just did that what happened was that look pages was a less effective competitor and go back to the core the core concept that's the heart of this case how do you translate lower wholesale into higher retail and it's not so it can't be simply search costs because of the modest market diminution in market share the answer is got to be the you have to come up with a mechanism to control margins for retailers that is the economic answer and order for three m to control retail margins and ensure reach errors that they couldn't have an adequate margin to justify their giving up a choose giving them an would be sold at retail and at that price had to be high enough that it exceeded former prices for both scotch and for the pages secon it had to enter into agreements of that character with each and every major retailer in the united states of america and it had to do that to ensure that anybody who agreed to enter into this staples and get three m products scotch for example at less than the price so you have to protect the retailer and then third you have to have and complicated mechanism to police this nationwide retail price fixing conspiracy now if you can pull off all those things you now have guaranteed to retailers another margin to justif considering the fact that they are not the target of the wrongdoing but the page is supposedly was the retailers interceded between them and their purchases they had to come up with this what i called and rube goldberg  pleaded and they pleaded that and couldn't prove it and it's no surprise if one just thinks about that remarkable superstructure trifold conspiracy you would have to have an enormous track record in documents for example to prove it out you have to have a record of prices which were stable in the marketplace we introduced evidence well that show prices were fact you have to have clear evidence that retailers agreed to this five price fix and that's not just one retailer that's not ten that is every major retailer in the united states or the whole m for the total market exceeds ninety percent but for private label which is the source of the supposedly lower priced options look pages had eighty eight  the vast bulk of the private label business and indeed the source of problem for three m in all of this was that elected to go into the private label business to compete with the patients and it ended up with a section two  have a very simple situation the consumer just not have standing to sue the remote manufacturer and there was no theory that they could come up with to satisfy fact roadblock save and  before the wrongful acts were deemed lawful and that therefore the only way that the super competitive means that somehow or other price levels have go up and then they go up as a consequence good morning your honor my name is john cooper speaking on behalf of defendant staples incorporated i'm going to address the question of whether or not there was any evidence of a conspiracy between three am and staples to either eliminate the pages or to fix prices and i have to say your honour's that i believe that this was controlled by your opinion in one thousand nine hundred eighty and malarkey versus hold some degree and essence or agreement and that the manufacturer sought that and then you go on to say that the fact that the manufacturer threatened the terminate the distributor if they didn't  not evidence of an agreement it is evidence it's nothing more than unilateral conduct and in months out of the court said the fact that a manufacturer and a distributor are in constant communication about prices and marketing strategy does not alone show the distributors were not making independent pricing decisions there is no evidence that staples communicating back to three am anything relating to price or anything relating to a lemonade in the pages let me clear up one thing counsel for the plan of said they're focusing on the generic look pages private label staples documents that the plaintiff cites are post date that decision so it couldn't have been part of that decision furthermore the evidence is the undisputed evidence is that staples made and independent the pages the evidence that mr control wanted the site to which is the patterson email it talks about three am mr patterson meeting with staples to talk about the retail price and provide a retail price survey there's evidence in the record that that survey consisted of someone from three am going to different stores and looking versus shell oil will cost vs first interstate bank evidence of sharing price surveys of publicly available information is not a plus factor i'd like to turn briefly to the fact that there's no evidence that there was any agreement communicated from staples to three m regarding pages in any regard the evidence is uncontroverted that that staples made an independent decision based on price to switch to different brands different second tier brands other than the pages branded not private label but branded take it's undisputed that staples carried lazzaro and manco were competitors a three m staples made independent decisions to purchase those tapes from competitors of three  thousand stores in the united states one hundred seventy five stores in california now and there's evidence that those prices i'm mungo stores varied by as much as twelve percent on the same item between boston and los angles now mr hosty is absolutely correct that to carry out a conspiracy that complex between thousands of stores would have taken an unbelievable amount of resources and impossible amount of resources there's no evidence that that any inference could be drawn or any direct evidence was presented that there was an agreement that was communicated from staples to three m regarding like lou i'd like to start by addressing the last point that was made by mr cooper you notice that the discussion about the exclusion of the pages and evidence of exclusion of the pages was not made by three and it was made by stanley falls and the reason for that is telling with respect to three  notion but that doesn't make sense for us we can't prove it unless we prove a separate price fixing agreement overlooks the key factor in those bundled rebate agreements which was the coercive aspect of it three i'm told it's retailers if you don't go along with u dealing arrangements because of the way in which they were structured and they get into how they were structured to withhold that rebate an unrelated product was staples argues that there was no evidence of a communication between staples and three m s to any of this conspiracy but that's not what the on bach panel found one item of evidence that our court our district court found not to be evidence was this memorandum of a one and a half percent bonus one percent bonus being paid quoting from the just from the that our injury was playing super competitive or am i competitive prices the manner by which we measure the quantum of the damage as opposed to the fact of that the quantum of the damage there is an alternative way to measure it one way to measure it is the latter of which you've indicated that is what with three m's tape price have been absent the conspiracy but another perfectly sound measure of the quantum of damage is the difference between three m price tape and the pages to it because if they just it was not available after the conspiracy theory unless there were a conspiracy though not necessarily a price fixing conspiracy obviously the whole scheme here is that three m affected its monopoly through its retailers we don't deny that  bone of contention is that it doesn't require the setting of a retail price the coconspirator exceptions to illinois brick whether you deem it an exception or not an application of the lino grech is simply not confined to questions of price fixing one example assume that three m had wanted to destroy the pages and it went to staples and other retailers and said if you burn down the page just factory i'll take care of you i'll pay you twenty dollars every month for the rest of the year or twenty thousand dollars or twenty million now is it reasonable to believe then that under illinois brick only the retailers who did the factory burning would have a claim and we as the consumers who were deprived of the lower price what they just tape would not of course not