to shut off internationally on in this case top golf intended to preserve the company's monopoly of golf and to tame it centers and its offshoots through practices that exclude or severely hit new rivals and do not benefit consumers with a market share of virtually the whole market talk off efforts violate traditional any trust principles this is and i'm quoting from doctors hospital joe johns as opinion this is a classic any trust case this is not one of those strange cases that i'm going to go into with standing becomes a real issue there are no efficiencies and consequently top cops conduct the i quizzing of that pro tracer is anti think is fair i think there are several but i think the easiest one that compels reversal is his conclusion his factual conclusion that and this is record in his opinion record one seventy nine the court he says is unpersuaded that the lack of assurances in the statement to look for alternatives that was allegedly made by an identified top gulf executive is equivalent to a  opinion a plate that the court said must plead facts sufficient to show their claim has substantive plausible not legal and what the district court in this case did made a factual determination and then a legal implication of those facts that conclusion became the bedrock of his article three standing in his and he trusting i think that fact along  be rendered toothless because there is an option the harm is steelcase was collusion here you don't dispute pro tracer just got bought out i mean they gave you neutral need to even be totally blackballed out of the market any harm any harm and the harm has happened i have already closed my schmeichel why would i ever do business when i know that the dominant player now has the only technology that i need to compete psychologist as opposed to a psychiatrist and then the treaty and this is but no sixteen and seventeen i'm greedy and the company tax me on it and mccready the supreme court rejected the very same arguments   so i think i think the district courts are making a determination about credibility or just giving way to that decision as opposed to just accepting it as true that you have alleged crimes those facts are sufficient to show any trus injury  basically they would ask us to spend five years spending hundreds of millions of dollars with no guarantee that they would ever that they would ever issue assure us that the technology was available to us  top off will continue to license the technology to driving ranges it has already told us and those facts must be accepted as true that it intends to keep the technology only for itself in the gulf entertainment cent lines and share them with our competitors i don't think it's farfetched to infer and that's really what happened in this case not that a couple of things that i wanted to get to are brunswick because this notion that it's really an applicable bako also this notion that somebody else could have bought the business another distributor another another content company this is really our cannily this argument has really taken out of control because one there is nobody else there this is an industry of one there are no factual statements a anything to do with a sure shot does not a large the top off has interfered with that license in any way and he even said today that he is not alleging any breach of that contract all that he is alleging is that there is a possibility that two years from now in twenty twenty when the contract expires it should shut chooses at that point to seek a license top dog has declined to assure it mean so far off the map and you see whether twenty six comes you know i mean it's there any other hand that is somewhat disfavor we get our share of cases that go out of summary judgment but at least then there's something  any appeal is from a judgment not to reason so we get all twisted up look at what the judge say versus you know what is the judgment you're tossed out on a pleading in mixing  or particularly if the pushback as you just gave is kind of based on what the contract says and you know what may happen when he seems to be asserting well contract yes but straight up you know any trust violation b depositions and and all that so the question buried beneath that is to say i know what you just said about you know what derleth somewhere but it's to question you've heard us say ask all day you know wh this case fit in a six in a trust and what's the best case the most helpful case to us that despite what i just kind of said this fits right here any trust or not out the do believe also the rise in versus trying to go the supreme court's decision in that case that was also a motion to dismiss stage case and in that case the plaintiff like sure shot here attempted to make an as skiing refusal to deal argument and the court even and of course here you know reached the aspen skiing question because you can dismiss a right and she can dismiss antitrust injury but even having to delve into the actual antitrust allegations in shrink of its jurisdiction and what i think should reassure the port of the twelve the six stage is that the court the district court did take every allegation made in the complaint fully is true and the allegation of that top golf shot literally put in quotes what he alleges that top golf said and that allegation the district court took entirely is true that topped off had in fact said we will not guarantee you an extension now and if i were you i would look for alternatives and the fact that even assuming that was entirely true it still would not involve any refusal to deal means that the case is appropriate for dismissal of the two of the six stage and if he again it doesn't mean that there his antitrust claim if he ever has one if there's actually refusal a deal couldn't someday be dealt with but it doesn't mean that right here just based on the facts as he has alleged to them there's nothing for discovery to show of discovery shows the evils that sure shot is referencing none of that would have any bearing on the fact that this is still in receipt is all to deal case in which sure shot alleges in its complaint and concedes when it stands here it has not been denied anything and no one has refused to deal with it the other point that was made several times in arguing that i wanted to make sure and and reference or discuss is the allegation that there is just no alternative to this technology and therefore that there's no way that a sure shot can compete without it the complaint does also allege that top golf is a monopolist and that top golf does not use this technology because top off only recently acquired it and so there clearly it's from the complaint it's clear that there are other technologies and top shot doesn't allege any monopoly that top golf has case i should have told you which is clapper and i think it's very important to look at clapper versus him as the international the supreme court's two thousand and thirteen decision when you're evaluating rightness because in clapper the second circuit had considered and clapper i don't believe is a mission to dismiss stage case i don't want to mislead you on that but clapper was the second circuit had applied a test of whether there was an objective we reasonable likelihood that the plaintiff would suffer the injury that the plaintiff feared which was the conversations the plaintiff desire to have with foreign nationals might be monitored by the federal government and when the supreme court reversed it concluded that even an objective lee reasonable likelihood that you will suffer the harm that you are challenging is not enough to give rise to article three years diction instead it applied more traditional test of whether the injury is certainly impending and the plaintiffs in that case vary a canter a sure shot here alleged that not only was the injury certainly impending but that they had already suffered an injury because in order to try to avoid the monitoring that they feared they had undertaken expense to protect themselves to to prevent that monitoring and the court said that that those a furry even those steps who are reasonable and even if expense was incurred because of th steps that still does not confer rightness it does not make for a ripe dispute because it does not make for certainly impending injury because the plaintive cannot unilaterally inflict injury on itself even reasonably so even as a reasonable reaction simply because it fears an injury that is not certainly impaired would his show right to be different if the rightness would be harder then because there would actually be a clear allegation of future intent but it still would not be it still would not be a right dispute because of the fact that it would be a certainly impending injury many things could change in three years sure shot could decide it no longer one of the technologies of the his of the never happen sure child could fail as a company and decide not to spend the money on the technology another technology could enter the market cell which is are we prematurely entangling ourselves in something that isn't a real controversy prematurely before we have to do it because it may never come up and certainly not the question w that issue and i think the same is true here so even if there were a clear or categorical statement which there isn't you would still have the situation that it hasn't actually happened yet and so given that it hasn't happened yet this court is reaching out for a controversy that isn't present until sometime in the city was always going to continue right here isn't the allegation we can't continue our business we you know not only did we shut down we couldn't even open don't have access guaranteed access in three years should prevent them from closing for opening them and i don't take that them to be alleging that because he even said this morning it just you know wouldn't make sense for us to open now if somewhere down the we may lose access so i think it's different than saying that anything that that top up has done has actually forced in the players or forced the not to open because again right now they have the technology so they can open with it tomorrow and just have chosen not to do so i do think that in addition obviously right this is the first threshold question because it is an article three injury birds are an article very stinging question the antitrust laws is not because otherwise competitive because if you have the competitors might be denied access to technology in a different market the reason that a monopoly the reason that  knobbly would be well excuse me so the point of in brunswick with the court held in brunswick was if the acquisition here was unlawful it was because the purchaser which came bought bowling alleys brought a deep pocket parent into a market of small companies and in the court held respondents injuries the loss of income that would have been had the wire centers gone bankrupt bears no relationship to the in to do so and then decided not to license it to other competitors so that it would have a differentiating factor injury would be identical it would be the exact same injury because there is nothing busters had purchased projects or but he claimed injury to the extent that you think of future fees or everything is a deal is an injury that same injury would have been severed they shot in exactly them surely a competitor who has been bought out based on the facts are occasions in this case that they have told us yada that basically go and find it somewhere else one into the record indicates that they said they were only going to sell it only they are already in that market and they have one hundred percent justice scalia again said in the cent on this issue on the issue of monopoly he had no problems in the kodak case he said when a monopolist takes action and now that we look at it in a choice this last choice that but i don't think there's much more to say about one's work into barclays in aus as they don't apply to this case those are a typical cases involving really causation and parties who are not even necessarily  get off the ground in this case they know chips i don't think will be able to vindicate what judge just marshall said is the magna carta of our free enterprise system if we cannot get discovery that will show i have no doubt in my mind after being away for nearly twenty years practicing any trust law that they're going to be plenty of the spotlight that shows that they intended to take this product that they want using because they want to foreclose competition and they opt for a close competition because we are out of the business and i don't think there will be discovery that anyone else is in the business but please get the record shows callaway golf for example is one of their is one of their owners they are going to it's going to be insurmountable the market in this market with ip protection and extra now it's easy to verify to overcome and also this is a case where consumers the differentiation is not going to be put tremendous without access to th