ivey you know from boy shell or inflection or for the plaintiff we have essentially three primary reasons why we believe the district court opinion should be reversed the first of the first reason is that the district court improperly acted as the trier of fact in this situation resolving key questions of disputed issues of fact in favor of the defendants in reaching their ruling second reason is that the district court improperly failed to acknowledge and credit certain key facts cited by plaintiff martha in reaching its ruling and third is that we believe that the practical effect of the court's decision undermines the longstanding antitrust policy which is designed which is followed not just by the supreme court but also has been reiterated many times by this court which vests standing in the jury the direct purchaser the first anybody who is furthest upstream rather then resting standing in multiple cers further downstream it's our position that martha was not a m agent for and i trust standing purposes and from our perspective the bottom line to keep the two most key key facts from our perspective where martha is control over price and martha's control over products selection we would submit to this court that when you think about what is a purchase and what is a purchaser there are no two more important facts then what is the price that is being offered for that product and what is the actual product that's being offered in this case martha exclusively negotiated with the defendants to determine both of those things so from your perspective all we would need in order to hold in your favor is that there's a genuine issue of material fact as to whether martha was a buyer or a mere purchasing agent yes yes i think at the at the end of the day our position here is that this is a very narrow argument i'm making which is this is inappropriate for summary judgment there's tons of disputed facts and if we were to agree with you on that when we have to reach any of the other questions in the case as it is now before us on appeal  know it's the only question and from our perspective when you look at it and it minutely this is of i have to read me stop you on that just a minute because that was something i was thinking about so i'm glad the judge graber ask you so if i i can too if i could determine that you have standing as a principle rather than an agent i don't need to determine that you i understand you're saying that if you are in fact a principal or a purchaser dreaded purchaser yes you will have the antichrist standing you need correct we would be the first car is what i understood ok you know so if we were to go through the facts i mentioned products selection and there's a lot of our briefs are very detailed as far as the factual sides of the record but what you'll see is that martha was solely responsible for negotiating the programs with the defendants and what the programs would be would be a did a negotiation in which they would select which of the defendants product or a martha would offer for it to its members so and also which of the various rebates and discount programs it would offer to its members so as far as products selection martha is exclusively interacting with the different manufacturers in this case the defendants to determine which of these products it's going to offer to its members and then the negotiation with turn to price and martha would be exclusively responsible for negotiating price two ways both the negotiation of all the pricing with the defendants that would be then martha would exclusively set the pricing to its members so marta was in control of the price both from the defendant and also to its members and importantly this the pricing that martha said to its members was not formulaic in e purchasing agent does it make any difference in your view no i don't think it makes any difference whatsoever if the antitrust laws are very clear it's the first purchaser outside of the conspiracy the direct purchaser it doesn't matter whether it's a nonprofit or not and not or whether it resells or whatever it might correct because that's what it seems to me that your opposition which leads me to the same area seems to me  opposition is saying ok you are responsible for selecting what products are available ok you are responsible for negotiations the price is another terms with the vendors and the executive director breaks the decisions but all of those who are the responsible parties are on your board and they help you make all those decisions so therefore what you're doing is just carrying out what these responsible principals tell you to do so that's actually directly contradicted in the record that's the defendants certainly their argument what this is that facts that we s cite them to you and i can get a little quote to it but from our perspective what the facts show is the following that the members do sit on member committees and they are allowed to provide non binding suggestions and input to the executive director however marta has over one hundred members they all have different views different priorities so it is down to the executive director to make decisions as to which products to buy which products to make or models i guess my worry about that is it seems to be very limited thus far that we're only to that point i mean what is your responsibility for the decision you make i mean they have very good arguments that you're just doing what the principals tell you to do that the best argument and that's where i'm leaving is so what  negotiate those and so what if you choose the product who bears the responsibility for your decision well first of all what i would say i would want to refocus us just for a minute back to what at the end i trust law say and what what our task here today is to determine who is the direct purchaser whoever is the direct purchaser has standing regardless of whether the overcharge is one hundred percent passed on all the way down so as far as the effect of marta's decisions on which products it's purchasing and which price what effect that has downstream irrelevancy for the end of trust laws but what i would say is marta is not there the membership is not there unified body if you take a look at the record your eighty six martyrs principal bob thompson this is a direct quote talking about this process he said i had to process all of this information to make a judgment on what i felt the best different direction to go and you're not going to please everybody you also had the vendor that you had to satisfy because if you if you created too much demand on a model the vendor night might not be able to provide you the amount of supply to our members so it was a balancing act but the director was in the middle and had to make the final call so yes the members had input yes if the if market consistently did things that was against the wishes of every single member short would have a problem but that wasn't the case they had to use their judgment take in all the input and make the decisions that what they thought were the best products to buy for its membership as a whole and which price well presumably that would be true even if it weren't a membership in other words if it were a unified corporation the c e o might get different advice from six different departments and still have to make a purchasing decision so i guess i'm not sure of the relevance of getting advice at the end of the day what we're looking at here you're trying to decide whether is martha the purchaser are they just sort of passive intermediary in the process that you just skip over you know we understand basically you look at the unit trust or say ok well marta is the first person in line should we skip over them are they really just a passive intermediary a sort of a non entity in the chain is the agent just doing what the members say it all the time and what i think what i would submit is what the record is showing is that yes marta listen to its members of course it did but marta made its own decisions and made decisions on court which models work or models and there was a lot of dispute and it's extensively in the record i can cite you but it's an arborist but this whole notion of which products work or models core models were products that they gave more of a discount to to try to push those sales through the members had very different views some members wanted you know a certain manufacturer's products to be more incentivized than others and martha had to make that its own decisions on that so all the decisions on pricing i appreciate where you're going and i appreciate all of this  the reason i'm pushing you just a little bit i i remember when i was a purchasing agent for simplot i made all the decisions as to what property to purchase i made all the decisions  what i should do in that purchasing but i wasn't responsible simplot was responsible i was doing it all for simplot nobody knew i was for some plot so that's i was just out there on the edge i was out there on the front i'm trying to figure out why and so different for you than what i was doing so i don't think i have an i trust liability here so and yet on the other hand i think  again i'm trying to push you a little bit as to what we have here because though you're making arguments about what you did or what you didn't do those an agent could do you've got to show me they're somehow a principal well it's a purchaser from our perspective i don't think we have to show that we are you know a principal but we are the entity in the chain who is the first purchaser and if you look at all the facts that are relevant to a purchase did you pay money we did and let me just hit on the i mean that's the reason i'm trying to get your movie a lot i want to get to the financial responsibilities you are and you hit on that and that's another very disputed issue of fact are what the record shows from our perspective and then i'll tell you what the defendants say from our perspective we have ultimate financial responsibility we pay the defendant manufacturer when when one of our members orders a product it gets shipped to the member we pay the defendant the member pays us ok the defendants take the position well that's just a ministerial act the payment you're totally protected because you have letters of credit that protects you well that's not true at all and in fact in the record it shows that there were several circumstances where we we made a payment the our member went out of business their letter of credit was not sufficient we cite these in the record and we were ultimately the party responsible for those products and we actually had to go to the member pick up the products and take possession of them and sue and basically sell them on our own but the point is that ultimate financial responsibility lied with us you have to remember the members have no interaction with the defendants at all  saw the question of whether someone is or is not a purchaser or a buyer is a factual question the legal standard is if you are a purchaser you have standing if you are not a purchaser you don't so we know that the legal principle but that there factual question it seems to me is whether there are inferences that would permit a try or fact to determine that martha is in fact the buyer eight of its brief words stated that a buyer will always determine whether to purchase when to purchase what to purchase and how much to purchase ok let me let me just make sure i understand your position you don't dispute that a buyer does have and i trust i mean if there were if it were just the x y z company that the c e o walked in and said i want twenty of those they'd be a buyer to be drawn a reasonable inference to be drawn that marta is a purchaser we don't have to i mean for our purposes on appeal we don't have to decide for sure if there's an issue of fact it just goes back correct martha's corporative plan and its articles of incorporation reading through those it says marcus shall make sales to shareholders of a wholesale nature and shall not engage in the market that's referenced in those articles in a corporation is not the market we have before us this model is martha co operative of america inc i understand the articles of incorporation one thousand nine hundred sixty five articles of a corporation concerning north central cooperative incorporated a for profit entity so that was a predecessor corporation since nine hundred sixty five has gone over some sort of reorganization so the partner documents to look  at the on the ground facts as i understand it there is evidence in the record that martha owned the products when they paid to sheeba and they own them until the members paid m turn and that there are some instances as counsel was describing in which martha was obliged to pay even if the members were unable to and did not and that's  risk of loss there was and i can ology a statement made by mr thompson martha's executive director also the martha thirty six witness where he said well martha really was the owner until the members paid there is one sentence uniformally as an expected practice issue u c c form ones who issues u c c form once creditors who are trying to perfect their security interest in collateral and i considered his testimony as a whole particularly this reference to the issuance of u c c form ones as an expected practice then i don't think that the markets claimed that it ever owned the merchandise is tenable it's just not credible it's lie by the reference to u c c form once well what we're trying to figure out is is there a question of fact so i appreciate judge graber is question let's go on further seems to me that martha purchases the product person who receives the product pays tomorrow for the product is that more than the product martha pays to the person from whom the product is bot what martha was doing or part of what martha was doing was negotiating price lists i understand what purchasing agent regularly do and then marta after negotiating that there was a purchase made but who ultimately gets the product pays more tomorrow for those goods then what has been the negotiated price as i understand it and they add a little extra they determine the price to resell the product there was no iran i understand your arm off here i understand your argument there's no resale but why why does the owner or the one who ultimately gets the product pay more for it then the price that martin negotiates the core model discounts and this is definitely worth a minute of our time yes that's what i want to talk about first in terms of how was martyred being compensated there was a two percent lauren fee the judge talked to correctly recognized  it looks very much like a commission and on page ten of these supplements record the market thirty six witness said that this was a formula to which there were no exceptions so that's how marta was being marta who would charge the member up to the next dollar two hundred dollars maybe two hundred one but mr thomson said generally round up to the next dollar this round of money would then go into what's called the merchandise budget and from this merchandise budget more of it would fund the core model discounts those products that martha really wanted to promote among the membership so there may have been minor variations in terms of the price actually that doesn't distinguish it seems to me from any wholesaler who buy as products and pushes certain ones to customers so i am not sure really why that makes them in your view by definition a non purchaser the money received by to sheeba them one hundred ninety nine dollars and fifty cents in  issued purchase orders directly to to the vendors and there is evidence consistent evidence that the vendors which ship the merchandise directly to the members marta never had  for marta's members of that small inventory ninety five percent of it was only five percent electronics put in the numbers aside it was strictly done as as with everything else that market to get market provided services we acknowledge that in order to help the members out that's part of marta's mission statement martyr's mission statement and this is page sixty of the record is clear martin states that it provides that enhance the buying and selling of goods those are markers own words those are mine that mission statement is consistent with what a purchasing agent does a person days and does not act for its of the ancillary services all of these services were to help out the members that is to say to help out and large as principal so there are no disputed material facts in this case your honor because everything that marty did was for the benefit of its members even for the selection of the products mr thompson was very clear that he would never select a program that was contrary to the membership that doesn't sound like the words of the host sailor that sounds very much like the words of a purchasing agent always looking out for the principal always looking out for the boss so there's no need to send this case back to judge tiger or to anywhere else because the record is clear that martha consistent with it statement and its governing documents and the cooperate plan that it shall act on exclusive purchasing agent it's there and more of it at all times remain to true to its corporate mission that is to say to act as a purchase in ages one thought about that cooperate of plan that document was created in the ordinary course of business that document was created for non litigation purposes i'm not saying that that label should be well that's did that i say hopper i guess i guess i understand your argument but what we're really looking at is whether there's any material issue of fact about this particular determination it seems to me that a cooperate a plan is some information that makes it what it is but what we're looking at are there any material facts that are contrary that's why we're asking you the questions if you prefer questions i appreciate that you honor i mean if in fact you could say these people all of god was they got a list of the products they could buy and then they did all of buying in that all of product went to them and there was never anything that martha did in the process that would be easy but in this particular instance that's why we're asking the questions it seems as if martha pays for the product the individual members if you will reimburse marta to say it as best you can but give martha extra than what martha pays and mart is responsible if one does not repay them well yes your honor but the fact that martha pays that goes to central bill and there is an element of financing that's going on here central billing was created so that the vendors would have one one convenient place to send all of the invoices and the vendors would have assurances that they would get paid already it just as easy for the vendors to have that payment and have the payment come directly to those who are in your mind the direct purchasers but is the fact that it goes to mar trying to determine is that enough of a genuine issue of fact for which one ought to take the whole evidence here from all of those people who are involved in the if you will the project and then make that determination or can we make it on what we have in front of us and that's all we're trying to do is really make the determination based on what's in front of you let's say for these for central bell and this is a service not done by to be it could be depending on the circumstances it would be it would be hard to imagine those circumstances your honor again in light of hanover shewan eleanor broke the direct purchaser rule has great meaning there are limited exceptions to that rule right and all we're trying to decide here is whether there's an issue of fact as to who is the direct purchaser we all agree that that's the rule it's just a matter of how it applies to this situation when going back to the grill and i agree this is in there in terms of determining who the direct purchaser a very important part of this case i mentioned earlier marty's acknowledgement that whether and what and how much that defines who a purchaser is twenty eight of their brief look at page thirty five of their brief where martyr acknowledges that the members of members decided whether to purchase one to purchase what to purchase and how much to purchase the members are the purchasers didn't market itself ever decide whether to pick purchase know when to purchase know what to purchase how much to purchase nobody except martha was determining what products were to be purchased and what the price of those products was no one determined that but martha of the members themselves member this w a nonexclusive arrangement the members could look out the martha price sheet and say yes that sounds like a good idea to me i would like to buy one hundred units of that particular to chivas sized television based on the price i see on the price list or the members could have this i could decide i wish to purchase my televisions on myself on my own correct in other words marta has t v ads to sell me i can purchase them at that price or i can go get them on my own and purchase them there so in that instance or anything as of this hour repurchasing from martin no it's just it's an offer to sale it's what purchasing agents do on a regular basis like the group purchasing organization in am premier it's trying to gather up the the collective purchasing power of  its members just like in that case of there was no suggestion that for me or the buying organization should be the direct purchaser and no suggestion that for me it was acting as a host sale or cancel you well exceeded your time and i think support i'm not going to go over anything that's already has want to make two quick points and see if the court has any further questions sensually our main position this is tons of questions of fact here and a lot of really critical issues as to who is the purchaser but i have a sorry sight of one sentence from bob thompson and said that wasn't enough this is a transcript of another martha employee who's talking about the financial responsibility point question you gave me a second example of when the goal of mart as expressed in this cooperative plan might not have been met and you said that would be an issue where a company went out of business and could not buy the merchandise they had committed to do you remember giving me that example answer yes and what would happen in that circumstance answer we would be responsible to pay the manufacturer even though we were not being paid and that one sticks out maybe two situations stick out we actually literally had to take physical property physical property of the merchandise in our office in scottsdale so that's record e r one six six so there was also a little colloquy about whether or not modest pricing to its members was formulaic or not again a hotly contested fact we say it wasn't at all same witness this is one sixty eight question was there a formula that was used to determine what part would be passed along from marta to the members answer well if there was administrative charges or central billing discounts that we were given that would not have been passed along but typically any other discounts would have been passed along i don't know if there's a specific formula though i don't believe anything exists such as a specific formula so again they were making their own decisions on a case by case basis as to how they were going to use the discounts how they were going to price very products is there any significance of the fact that the articles of incorporation that one set of articles of incorporation say that martha will make the sales to the shareholders of a wholesale nature and not engage in the retail sales so what i mean you put that in your brief we did you you put advancement council very aptly says well that's what it will but it doesn't have anything to do with the situation in front of us what i would say is if you look at the facts i think martha is analogous to a wholesaler and i think that that's why it's in our brief however i don't think labels matter here i think what really matters is the actual economic facts of what martha was doing who  paying for the product who was financially responsible i mean listen we'll admit that in those same those same cooperate well we're called in on a version that worried me a little bit about that it seems to me that you advance that for a false premise if in fact the articles of change to the premises now which is differently it's the one that they quote you know it's like i put that directly in front of you you know it's not different at all in fact the facts are very very consistent as far as how m operated with its members during the entire conspiracy period i think the point of that is to say if you're going to look at a distribution chain who is martha like they're not a distributor but they're like a distributor and if you also look in the testimony when they are asked who do you compete with they say they say we compete with distributors is is there any record of evidence about the passage of time and all of the products i believe i don't have it and ham but i believe yeah ok i don't believe there is i think the facts are as my counsel stated we purchase it we get shipped directly to the member we are financially responsible for it and we pay