it please the court my name is steve williams with the justice a very law firm i represent the plaintiffs frost and ra i would like to reserve three minutes from about all the decision of the district court need at least three primary mistakes in evaluating the complaint the st mistake was to apply a heightened pleading standard that the supreme court on at least two occasions after has said does not exist and applying a heightened pleading standard to an antitrust case directly conflicts with that supreme court authority and this court's authority but you know it's all there all r cases but everybody and his dog knows that the supreme court applies different pleading standards and twamley it ball and or pharmaceutical than they do in ordinary cases i mean that is just it's just the world in which we live i do not disagree your honor and my interpretation of it is that what the court did in tuam way was to say st we're just guarding the any claim to relief that's not controversial but the more important part was as in kendall which we're going to talk about what the district court did was to say we have to look at what the claim requires in order to decide if the complaint states a claim and the issue in twamley only involved parallel conduct the factual setting was telecommunications had been deregulated the plaintiffs alleged in a deregulated world company should compete it doesn't look like these companies are competing and then allege the conclusion and obviously they had a few more facts but then they allege the conclusion that therefore they have engaged in a contract conspiracy or combination do you  you have any parallel or parallel conduct allegations in this complaint or are we dealing only with direct evidence we're direct dealing with direct evidence and circumstantial evidence this is not a parallel conduct case and cases exist because the courts have recognized for seventy five years that direct evidence or even circumstantial evidence in antitrust cases is difficult to assemble because it had to trust conspiracy is illegal it is a crime it is committed in secrecy so to requires the district court did here and is the appellate these are asking this court to affirm that you must specify the particular name of a person within a defendant the particular date when they entered into the agreement let me ask you about that because you i mean it's interesting that you complain about that because you actually do allege a date in two thousand and five what's the basis for your allegation that the agreement was entered into into two thousand and five the basis of the allegation we the taliban of all of the facts that we have at the pleading stage before we have had any discovery well that you know you did have some discovery thank you and i really want to address that because the record submitted by the appellate he's would suggest to this court something that's not correct which is we had jurisdictional discover and i understand it and i apologise to no no what i wanted to refer to though the excerpts of record they submitted only included the plaintiff's requests they didn't include any excerpts of record of what they actually produced they didn't include their responses to our requests which objected to everything nor did they include what they produced so the effort is to try to suggest that as in kendall we had merits discovery there's no support in this record for that and what's important in kendall what's critically important because as the argument is made by the a pelleas they say you still haven't answered the questions of who what where when which it does say that in kendall but they leave out the st few words which say different standard depending on how much discovery is actually happened whether it's jurisdictional or how is how is kendall a rule eight if there was a it was there was full discovery base i won't say there was full discovery but what i will say it was it more than jurisdictional discovery or yes it was it's actually if you look at the last three paragraphs of kendall it's quite interesting because the district court decided kendall before twamley had been decided but the district court said i don't buy the idea that you can simply allege parallel conduct in a conclusion in fact the district court applied the standard that twamley anticipated so the district court said go do discovery to get the facts you need to plead your complaint and more importantly as it notes in the opinion when asked plaintiff's counsel said we don't need any more discovery if we do more discovery we don't think we're going to find anything else this is our case it is purely a parallel conduct case  now the supreme ask about that in your case and i know you're going to your position is that the jurisdictional discovery is not the same as the discovery that happened in kendo but you're st complaint was dismissed then you were given jurisdiction discovery what additional facts did you put into this you disagreed at the district court him properly dismissed your st complaint no and i apologize i do not agree because i think that the mistake is the same mistake in the  which was to say you don't have to just say who were the parties in the alleged conspiracy you have to identify the particular people within the companies that entered into the agreement and that is the heightened pleading standard eight does not include the supreme court has repeatedly said is not afflict i don't read the supreme court is saying you've got to i did maybe maybe he do but i don't see them saying you got to tell us who signed the agreement or who entered the o agreement but there's got to be it seems to me that what twamley does say and kendall does say is there's got to be some evidence for allegations about how this agreement was entered into and that seems to be what's lacking here and that's what i'm wondering is what's the difference in your view between what you put into your st complaint and your i guess are we dealing with the nd amended complaint or the st minute but the complaint that ultimately is up here now amendment consolidated complained what are the differences between that and prior versions of the complaint primarily and this is a critical fact that the district court's power point from elegy that is included in a complaint that confirms the allegations in our complaint that the american subsidiaries hiring decisions were controlled by the korean parent we allege that factually it was deemed insufficient the nd time we put in evidence from the defendant which demonstrates that to be true and the reason why this is important is because the district courts analysis never considered the explicit allegations of fact that the hiring decisions have to be made in korea there is evidence from the defendant saying that the district court analysis soley turned on characterizing our allegations a stereotype which they are clearly not one based on evidence that is in the  complaint then even if that were accurate then you've still got to show that there was an agreement that was entered into in korea and so it was in a weird way you've sort of moved it from america you know to the united states back to korea and what evidence do you have to show that there was an agreement in korea the evidence would be and this is the evidence that is set forth in the complaint that we would say is direct evidence and circumstantial that we would say are well pleated facts that are not permitted to be disregarded and that we would add our under this court's decision and starve the docket if there's convening interpretations on a motion  written by my colleague here was not an antitrust case though right that is correct your honor but i don't think for this purpose that makes a difference because as the supreme court said nicole antitrust cases are no different from any other case well yes and no i mean if you actually if you go read star and i think and you know i'm it's sort of analyzes the differences between these cases and that's why to the extent that anyone can sort of project what what the supreme court is telling us one of them seems to be these antitrust commercial cases because and maybe for some good policy reasons that the next i don't want to use the word extortion that but the pressure that can be brought to bear  show that this was in and maybe to put a finer point on it disabuse me of my notion that this was based primarily upon comments that were made and reported ten years ago in india well i'd like to so st of all that is not true ok in terms of the you be interested in working for samsung who then contacts him again and says i'm sorry i made a mistake i'm not supposed to poach l g for samsung the two companies have an agreement they don't steal each other's is correct after he's no longer working and there's a years of gone by he files and they answer oh well it's interesting and inexplicable unless the facts are credited but we shouldn't really be talking about whether you credit them or not because a motion to dismiss they should be credited and in terms of mr dahl in the newspaper article he's on the human resources global leadership team he's responsible for human resources worldwide and the citation i gave you from the complaint is about the global human resources team the same team alleged in the complaint now in the district court opinion the only conclusion is you never explain what the global human resources team is that should've been required but in any event we did we said this is the people who make the decisions about the hiring policies and they made the decision that you can hire in the u s unless you get approval in india and secondly there's a part of his comment that doesn't make sense if the district court and defend its interpretation is applied which is when he says we have an agreement that applies across levels now if inferences to be drawn in favor the plaintiffs then i think that the fair interpretation is meaning corporate parent down to subsidiaries but no one else has ever even offered an interpretation of what across levels might mean and the last point i make in all reserve my remaining time is i think if you look at footnote twamley when the court says we do not apply any heightened pleading standard it's in continues to say what the real issue is in this case and in tumbly which was to say we're not rejecting this complaint because it's insufficiently particular were rejecting it because when we consider all the facts in toto say don't make the claim plausible and that is not the case here thank you i'd like to reserve the rest of my may please the court john i would representing the samsung defendants will also be arguing on behalf of the l g defendants today for two independent reasons judge freeman correctly concluded that the plaintiffs here failed to plead sufficient not conclusory facts of conspiracy or an actress conspiracy to state a plausible claim for relief above the speculative level underbelly purses twamley the st of those two independent reasons is that the plaintiffs here provided no none of the basic information about the supposed agreement that is at the basis of the or and i trust conspiracy here now they don't really argue that kendall doesn't require that but they do say kendall is a misinterpretation of twamley and i'd like to from what the court said in twamley in footnote ten to show that they did this is not the basis is something they said these are the kind of facts we need in order to state a claim under rule eight they wrote there that quote the pleadings mentioned no specific time place or person involved in the are trying to hang on a nd i'm not footnote ten where you in the front know i got to tell you i don't know my copy of the cases in my lit bag over there and i have merely reproduced the quote here ok so start reading slowly and i can probably find is a long footnote ok leadings mention no specific time place or person involved in the alleged conspiracy hang on again i am found yet ok oh that's a yes and so there's that letter that's a long sends it starts of that was they said quote a defendant seeking to respond to plan of concludes reallocations would have little idea where to begin so they suggested that you need some sort of information there and even aside from tuam i think that's a pretty good indication what let me out let me ask you this do you agree with the characterization that the only allegations in or of parallel behavior no i disagree with that in no matter what there was beyond that because as i read judge lynch  so that's one place and there's another example is right wait a minute i'm asking you whether there's anything other than parallel behavior and then they say the next sentence is plenty of say st engage in parallel conduct tell me where there's anything other than parallel conduct i'm so lynched i'm saying that they basically made a conclusion the allegations of a conspiracy just like they did here and it becomes a little bit clearer i think also you look at it paul out of i could just quote no i'm not no you're sliding away from the the question that's been raised here is with both respect to kendall and with respect to twamley is that the only allegations are of parallel behavior then you need more but i'm hearing at least i think i'm hearing you're saying there's more than an allegation in tuam plea then and merely an allegation of parallel behavior is that what you're representing to me that's correct and it's also so i question then is where is the allegation of more than parallel  i think that the only no i think that you're right but there are conclusion re allegations of conspiracy of course there are only right example but there are no factual allegations of anything other than parallel behavior in tuam no i would agree with you on that but i think that there's also no center and if you look at it paul they said the same basic thing that there is a parallel and i'm sorry that there's conclusory allegations of conspiracy followed by that but if you look again at footnote ten there they're saying this would be right out except for the allegation is a parallel conspiracy because they said essentially justice souter's point a footnote ton is that if they weren't alleging parallel you know parallel conduct this is exactly what they would have to prove this is the basic facts you've got to say you know who did what when they did it and you know and  day the recruiter calls back and says opes sorry i made a mistake there is a an agreement that i can't coach he learn after his were no longer working for l g for more than a year he applies he gets a response he has several identified tell him there's no poaching agreement the economic times publishes a story saying there is a poaching agreement in which we have quotations from mr gall saying yeah there's an opening agreement that's a lot of specific allegations different layers here the judge freeman said they didn't do and if you look at twamley they specifically said if it weren't for these allegations of parallel conduct this is the kind of information they would have to give if they're going to allege a direct conspiracy and they haven't provided any of that  won't add any more to that other than to say that this court if you don't like twamley and there's in re musical instruments and equipment and equipment and interest litigation where they said that is what people must show they haven't done that so i mean that is layer one so let's go to layer two which is the allegations and what we're saying is that all we have basically are you know conclusory allegations of this statement in india together with what happened to two people case that's correct but they haven't shown anything to say that sam some people have the same trouble getting hired at l g they've only said people from l g have trouble getting hired at samsung and again only two employees there but st let's start  with the statement in india st of all if you look at the article on its face it addresses labor conditions in the indian market and if you think of being a charitable out that thought that look at the st complaint their st complaint specifically disavows the idea that they were saying anything about the u s market they said this was the indian market only that supplemental accepts a record one hundred and four paragraph seventy six and so you combine that with cases like and may have been legal in india which is a pretty good reason why you have it in india and nowhere else then you have cases like you know the injury elevator and across litigation out of the nd circuit where they say you can't just say oh they did illegal and a competitive conduct in another country you have to show why it's also applying here and one thing they never pled although they say that the centralized in korea they never said these companies have the same policies labor policies everywhere so there's no reason to believe that just because the head up there and went up to korea and went back down to the united states that's something they never and then you get to the comments about the pekin it can i know you're in bed just to take that piece of it what about the fact that mr dahl was on the global chart what do we make of that well again they they haven't alleged any reason why you know simply because he's there i mean sure you know he's a hard guy for a big company but it doesn't mean just because they're all together that his policy i mean there's you know we haven't really can argue with the fact that because you know that they're with allegations that they decided that the top but they've never you know said oh but they have to pay have in this country they've got to have it in all other countries because again it's doesn't appear to be illegal in india there when you get to their allegations in this country and again their allegations in this country all concern people from l g to people from elegy trying to get jobs at samsung and striking out and they're trying to allege from that a global conspiracy and unlock the good you know the doors to world wide discovery based on those two people and i think it's intel and when you're trying to decide what these allegations mean if you have to have some sort of reason to believe that these people have some basis for knowing i just want to point out  allegations about ass as the person from samsung said you know who they attribute in the current version of the complaint you know mr ross learned from asked that these neither company y from each other well if you look at the last region to complaint what they actually what he actually said at that point was quote we do not hire people from l g and that looks like a unilateral statement about what s g does what about what samsung does and from that to the next version it becomes rather learn from do not hire each others employees now if they're claiming direct evidence that direct evidence is if you look at cases like i think it's everybody requires direct evidence to actually have everything right and you can't have inferences that's virtuous milburgh which is a rd circuit case but every case is basically the same thing you can't have been princes and built into this is now a layer of inference either mr ross or plaintiff counsel inferred from we do not hire people from  g that there is actually an agreement and now they say that they learn from us that samsung and l g do not hire each other's employees and so we have this layer of speculation what they've done is they taken the speculation out of the conclusion restatements like the and instead they're putting in the most people with don't saying why those people have any basis for knowing that and you just can't do that i mean williams wildly could have sure i got out to a bar where they were bell atlantic linemen and heard some people shooting up their mouths about how they're trying to keep the other companies down the competitive local exchange carriers down but just because they would have done that wouldn't have made it any better because in order to make it plausible you have to provide some basis why these unnamed people had any basis for knowing what was going on otherwise as the judge below said at forty two and forty three of the experts of record it is just speculation that you know it could be just a rumor mill it could just be water cooler talk and i think that there's all the more reason to believe that because of allegations in their own complaint after all they say it paid seventy five dollars per plant late that the agreement actual agreement was quote kept secret from all but only the most senior executives at l g and samsung and their subsidiaries and so much of the secret the recruiter calls back and says i can't do it well again but we don't know what exactly they're relying on for that there are all sorts of crane crazy rumors in the world that have no basis in fact maybe they were just seeing you know maybe they saw people because you know when you're dealing with people and  property there are a lot of stumbling blocks to hiring people from one to the other because there might be nine to pete's there might be non disclosure agreements and so it's very hard hiring from one tech company to another and it might be inferring from that all on their own without anybody in any position to say oh they don't like t hire from each other and one thing leads to another and they say oh i'm not supposed to hire from those people but they know exactly who that woman was she reached out and contacted mr frost through linked and so she has a linked in profile you could look at air and see you know it what exactly is her background none of that information is pled they could have you know they could have called her up and said well tell us about all your background dealing with samsung and given us some reason to believe that the word she was saying had anything more import than just you were i holding for the book something we heard at the bar wouldn't discovery solve some of those problems again st of all they have to me to a minimum level an order to get discovery but secondly they did get discovery despite what mr williams said  this is the way he characterized his discovery for the court below some of the information produced in discovery would permit us to provide more information to the court that would be further indicative of the existence of a conspiracy reelection unquote so he obviously thought it was somewhat helpful and again this is what they asked for and there's no allegation that you know we didn't produce to produce three thousand pages of stuff quote they asked for all of l g s documents relating to any written or unwritten agreement or understanding regarding the hiring recruiting or retention of employees unquote between it and samsung did you produce that and we produced it and after all of that they didn't add any more information there were no allegations of elegy korea saying don't hire anybody from samsung did they move to compel it all down below  i don't believe so but i honestly i don't know the answer to that so i mean again we have an allegation of a global conspiracy that boils down to a complaint or i'm sorry a newspaper article that they themselves said involve the indian market before they're trying to improve it now but again they're just drawing inferences out there they're putting their baking into the complaint inferences that they made which you know if they're there inferences they're still inferences that are not direct evidence and the experiences of two people who work for l g again we don't have any evidence of people from samsung trying to get hired at l g and striking out as it happens i mean a couple hours in linked in and you could find plenty of people and if you know either they weren't you know they were doing adequate and investigation or they didn't like what they would find because i mean it's all out there and it's a simple matter to find out whether or not there are these people happen or not as it happens there are plenty of people who go they had pleaded either some more detail like in the in reaper taito fresh in process potatoes they pleaded every fact there in the tunica webdesign they pleaded every fact there and then fact they had an ill advised e mail from one of the conspirators to the victim and in this case if they would have just pleaded some basis for the for the people who are who are alleging there's a conspiracy some basis for them to know that it happened that the headhunter had a long experience that she had heard from senior officials or you know basically something to let us know there was a there there that it wasn't just speculation layered upon speculation thank you thank you thank you thirty five and a lot of points i'd like to say so st we never say kendall's wrongly decided we explicitly saying our opening brief that it was correctly decided and stands for the principle that parallel conduct without more is insufficient nd the purpose of notice pleading can i ask you i know and if we need to give you more time but this is an important point to me whether there was direct contact in footnote thirteen of tuam it says the complaint quoted a reported statement of qwest c e o richard no part to suggest that the i lex declined to compete against each other despite recognizing that it quote might be a good way to turn a quick dollar this is only  question is would that be evidence of direct that would be direct evidence when what i just quoted a statement from the c e o fact it's actually pretty it's more persuasive evidence than what you have in this case which is a statement by some person in india and i apologize your honor was a footnote thirteen because no thirteen in twamley which is very hard and i'm trying to find yeah well thirteen is not long but let me interrupt for just a minute don't feel it quote is the quote it might be a good way to turn a quick dollar but what the text says is that the complaint used that to suggest that there was an agreement so it's not clear from that that they actually i don't know how that's any different than what you have here i mean you have direct evidence that i mean this seems in the same vein of direct evidence that you're using except this came from the c e o of the company and you have evidence or a leg ations publicly made somebody in india respectfully i think it's slightly different if the quote began with the i will decline to compete each against each other then that would be directive is if it only says might be a good way to turn a quick dollar that's a lot closer circumstantial all right although we would not to belabor the point but it's close to circumstantial but that's the same i put direct and circumstantial in same bucket as compared to parallel parallel conduct and i think that's fair because i think of harilal conduct which twamley undoubtedly was as the th circuit has repeatedly said including in musical instruments require something more close it's just based on parallel conduct in a suspicion that that wouldn't happen absent an agreement here and i want to comment the purpose of notice pleading is to give notice of what it is you have to defend against and the argument is we have no idea plaintiff never said the agreement is exactly what the complaint says and we've never been mysterious mr dulcet l g and samsung have an agreement across levels that we will not hire a less a year has passed since the end of appointment which is precisely what the other facts in the complaint say there's only two companies it isn't very hard for these two companies to know what it is they might need to do to defend this case given we've given employee names there's only two and therefore that was not proper notice but here we have put in what is direct evidence we put in circumstances that can't be explained in the absence of an agreement and finally this in motion to dismiss say no look you need to go back and get more evidence what more do you think you're going to get why didn't you did you move to compel well let me answer the st question and i'll come to the next two because i think there were three so st of all the court this court should not be making a ruling based on something not in the record so yet in the record is what we asked for not in the record is what they gave us that's a not on the record early  they objected we met and conferred they gave us less and because your honor we were only permitted jurisdictional discovery and they objected to it saying merits is not jurisdiction and i understand i'm outside the record but i want to be in the record yes and i just differentiated between the e r what you what you have for our convenience and what is in the record and of course we can look to the underlying record so i'm only asking what's in the record understood in the record as we were permitted jurisdictional discovery they objected to merits discovery and they did not give us what we asked for i think if there is time my final point would simply be that from the time of twamley there's been a sea change in civil procedure particularly antitrust cases none of that though has changed either how a motion to dismiss should be decided nor the importance of civil enforcement of the antitrust laws the decision here if up held applying a heightened pleading standard that could never be answered civil plaintiffs before discovery would frustrate the policy that congress had when it said we want to incentivize private plaintiffs to enforce the antitrust laws for the benefit of consumers in our society and that's the