tend to talk about today first you can work for section one you have to have concerted action but the association spoke with one voice and with one interest second of the apple lisa tried to restrict the market to an imprecise definition of a strong and vigorous let me talk briefly about concerted action is the court no the single entity rude dictates that its single entity cannot conspire with itself that's the lesson in american needle and copper well there are two elements the plaintiffs must prove to get over that first is that there are separate economic actors who have separate economic interests to advance and second equally as important and what is missing here is th actors are pursuing their own separate interest rather than that of the association morning thing no where in the so called elite readers first person in their own interest know you're on and here's and let me explain  why there are remember there are only five people that are considered by the apple leaves to be lead breeders on a committee of thirty and the issue is of course five couldn't control that issue so what they say is the five control the rest of the thirty was my point you may have five each pursuing his or her own independent interests of the five it's you've got to go farther than that yes your honor that's right and they admit that if their testimony on that is about control is assumption and they do so specifically and additionally the other members were polled on that in they said of course they weren't controlled there are other things they bring up like the good old boy network one thing to say it and it has an affair yes tone to it but it's quite another thing to prove that they talk about a number of additional things they they say for example is there was a meeting behind the back of the president and secret in a furtive type of meeting but the truth of the the truth of the matter is that didn't actually occur they refer to exhibit ninety two which is only an email from the president of the couldn't be conspiring by my back to members of the stub a committee to meet with the board of directors and there's no evidence that meeting occurred is a result of that that doesn't help them at all they claim there are a lot like either american legal versus the n f l or the north texas specially positions and let me address that legal point because i think it can be put to rest rather easily first thing is and i have the facts are roughly the same just change the organization in the n f l thirty two teams combined together each of them had their own trademark and logos that they were going to market is souvenir uniforms and the like and they wanted to have one manufacturer to do it so they formed a subsidiary within the n f l to pursue that they sued their pursued their own separate economic interest in doing it and they did so collectively only to one purchaser to restring trade of course that made made sense but that's not at all there's no indication that anything like that happened interest in the breed read your story was what drove this issue off additionally in that regard it's very important to note here there's no evidence that separate economic interests were actually pursued if you look at the twenty five to thirty one of their brief you'll see that they don't even take on this issue at all they don't believe it is an element to overcome the single entity defense and that's important in this case i mean there's no evidence that they were  well there there was testimony from the members that they they called to testify to reasons for their voting for the roof there was no evidence that they pursued anything separately well they now in their brief they cite type of there could be more horses in the market but the issue we have is they've got to prove that issue to be able to do that in they didn't the other thing remember is all comp sort of action is it does so well actually i mean you don't have to actually all you have to have it's a few stray remarks by people that the jury can infer they're pursuing their own economic interests your honor i agree with that and there's no doubt about that and we're looking at a no evidence standard and we out there usually have to take that on and at some point you seem to me what you have to take on is that you were not able to impress dropping sun on this and you were unable to impress the jury so it just harder for her it does make it harder our it never should have gotten to a jury at all because of the lack of evidence on those on those points that we think or are terribly terribly important let me talk about the relevant market because i think that's the big problem in that case the relevant market here was defined is alit quarter horses it was described by the witness is to put the top or the best of the best it's narrowed to a point of absurdity  it also is so imprecise it blurs the boundaries to the point of nonexistence and is completely inconsistent with real world realities which is independently is your honor held in dr hospital something that will destroy a class here's what happened there is no that no one disagrees that in the total horse market there is not vigorous and live competition so they couldn't limit it there so they eliminated by their own testimony ninety nine point five percent of the quarter horses to limit it to an elite group and here's their theory of shortage and this is how they got to shortage this is what they say sperm taken from  one taking can breed one million mayer's troop by the way american only produce a few eggs a year and typically in the embryonic transfer situation can only breed or produce two or three a year therefore they claim this is this is it this is this is the shortage their claim is that there is more male reproductive material out there than female that is the shortage that's always the way that he has been though i think females understand that yes your honor and i was excited to make this argument to a mixed court as a matter of fact but where is the mean by the runner they created a shortage to get out of the regular market that's my only point and i probably ought not to take time about elite mayors yes i think and why are they why do you need an elite mayor to breed cloned course you don't ok you absolutely don't like the idea is that perhaps you could get more doing it that way would you breed and leave the horse with the sheep i assume so i assume so difficult to quantify and way too vague dr flom who came up with it said these things and these are quote from the record it means alternatively said these are synonymous high quality best of the best top drawer aspirational well where where is it in all this issue why do we why do we define all quality of an animal and you know we actually courts have have shied away from this is too imprecise to have a direct meaning and second he admits there is such a thing or as a leader forces that perform better than others but questions whether a class can be drawn on it an equally as important questions where this is only we ought to consider only three hundred fifty horses in of that one seventy five for mayor and that's pretty much their class and you reach that decision based on price thirty five thousand dollars and up was initially what dr phil said so the issue really is how do those and but in the end put he said is the essence fascinating he said all these characteristics i came up with he actually said you're going to hear characteristics and it was in their briefings characteristics actor actually dr flump said indicators of what would would happen that the real truth of the matter is he said the consumers don't care about that what they really really care about is the situation where you have a horse that performs well the women's right races or will be able to make money in bre what the consumer cares about so the question obviously is going to be horses outside his alleged elite market going to be reasonable substitute for the ones in it and we know there are from undisputed three came from the year when sales in he is elite class we did the same thing for two thousand and ten we did it for all the four top forty two horses in two thousand and ten and eleven and the statistics were roughly  their answer to the us is one case and it is international boxing club of new york and in that case the united states supreme court said that a market was properly put together for a market for championship boxing bout not championship boxers but quality not champion boxers themselves but bout in a category as there is a championship belt there's only one champion at a time decided by a bout that everybody know just like the super bowl we know that the that the vincent barty trophy is going to be on the line it was precise they didn't quantify the market by the quality of the box or if they had that cage would have been analogous but it's not in let me say one other way when so the restraint was in not getting letting somebody into those about who was restrained in organizing such that other people couldn't organize competing ballots yes it was where they couldn't organize competing bout they got  by them up in may deal so only they could lose that would be more quibbling to monopolizing the racing you know the race tracks it that would be what it would be equivalent to your honor you would not be equivalent to the horses themselves no court that we can find at apple lease site none have ever quantified a market based on quality of an animal or human finally let me just turn briefly to no reasonable or unreasonable restraint on trade not going to say two things first off they say well our way or our horses are worthless because they don't get registration and if they don't get registration people don't like and consolidated metal products this cord nine hundred eighty eight said a refusal to promote or approve that has the effect of excluding a product from the market even when the consumers like the product or their argument i think is that these con these cloned horses can't even compete in these tough mining races right yes your eyes they're not registered that's right and and that's a matter of state action and we're not claiming immunity don't get don't get me wrong but what we're saying is states do that because they value our registration we don't encourage that but remember this court recently held in the ricci sports that even if there is an exclusion purposes of exclusion of a product because of the regulation there and the entry double a took out some buyouts because they could cause some injury even if there's exclusion that doesn't close in injury stone addressed injunction issued to the extent that that is desirable if this isn't any trust case i guess we ought to start with where the money is opposing counsel has not mentioned it our clients held horses which the district court has said are for all practical purposes the difficult to the breach champions what they want association will not register our horses will not registrar horses offspring where the money in those and where the damages were in this case which hasn't been are in is inbreeding of these sources where your client the jury did exactly what your client asked him to do when he said this isn't about  money he did say that but they also had another argument which is very interesting in light of opposing counsel's contentious which is their expert said you put on damage of loss of breeding  of studies and loss of sales of your legs but you've assumed that the prices are going to stay the slave and under our testimony there's going to be competition in the market and the prices are going to go down so they said we are damage model was any good because we've relied on all prices and had said what the new prices were going to be he says no harm the competition in the trial court there were a lot of the fact that there was going to be a competition to to defe our damaged except on that but i mean the fact is you didn't cross appeal lack of damages right we did what we did pleading one forty is a trial judge's opinion on attorney's fees and it talks about how there was injury  plenty of injury and plenty of benefit to the to the market and to the breed from from our case but the jury didn't more damages it let me just ask you one practical question again you know your theory about money only goes so far so i'll ask you  practical question if this were a movie about you know dolly and dolly the cloned who were certain mischievous to whatever the name means why couldn't your guy just create demand for this product by buying off one of his buddies in the good old boy team let's have a race let's see you the better course is and you publicize it may get a huge audience for it because your client is apparently not not a poor boy and then your horse shows his his or her words and you know you then everybody else in awkward says oh my gosh we've just got to we've just got to open our arms to these new guys who are there or they're going to take the market away from all the old fashioned horses that might have been an argument to the jury but it wasn't made to the jury this case is not about racing it's about breeding i understand that is there that's how you show that your breed is better than your breeds literature is with mayors they dealt very frequently it takes up seven to ten years because you have to buy an elite mayor and you have to maybe put that mayor in competition and you still have to prove that the offspring of that mayor will succeed and are successful and that's the way you prove that a quarter horse is elite they didn't mention characteristics of elite there but they largely have to do the breeding but our people are a threat and let me say breeding value is tremendous mr was has a horse aptly named corona cartel one horse breeds eighty eight mayer's and one year at thirty five thousand dollars apiece stud fees that's three million dollars in one year from one horse or  maybe a volunteer when he serves on these committees and makes these rules but he's certainly got a strong financial interest you know i'm willing to accept that but getting back to the misuse here the first one they raised is that there's no concerted action and it seems to me i mean i read through your briefing and where is the evidence that these five believe the worst owners controlled a committee of thirty and then the that committee of thirty controlled the board that i mean i just think that i don't like to hear that evidence with us first of all a court's vote by their brief is this the opening brief is worthless they don't talk about their own witnesses mr barrow mr was say that all thirty or twenty eight of the people are breeders all eight of the members of the stud book committee who testified in this  horses and our breed i mean every naturally when you're talking about the characteristics of the breed this is an organization of record more than a quarter million people worldwide is it not something yes yes and so natural it stands to reason that the committee that's going to determine the characteristics of the breed is going to have more readers on it ground than the person who has a little you know we can farm in bellville with a registered quick quarter horse so calling sixteen your client says that he's being excluded from registration but it's damages have to do with the elite market the elite some barkat and therefore i had the mis impression perhaps with the restraint of trade what had to be tied to an elite some market well that wrong we can't get in the market at all i know you can't get in the market at all but if the market if the market is everybody from kingdom come then you can breathe just as well as they can whether you register or not and if you've got a superior mark a superior product i don't see how you're excluded from buying american and letting your carrier definition my understanding at least this is the way i read your brief you were focusing on these five big bad guys the good old boys who are members often on not ever not all of moment the same time even perhaps off and on for several years of the thirty member committee so you've got four members of a thirty member committee i would hold your attention if he won forty seven which is the o of the association their interests may very well be the same as the association so how do you get this conspiracy between the association and the members test of american needle is whether they have an independent economic according to the jury was do they have an economic interest separate from that of itself the quarter horse associations interest is in having board members more horses is being used by people who are competitors of the play to pursue their own individual interests which are not the interests of the association i would cite the court but only to american eagle but to the hybrid level case westat upsetting by members in american legal in north texas say the test is who controls and the jury that they control the year so what you're saying is that you have a bunch of breeders and you're saying that in this committee there were of course in this organization with a quarter million people there's going to be the whole ninety nine you know ninety nine point nine percent of the range of cordura who are says from from nags and old ones on their way to the blue shop to to the elite crowd right and naturally it's not and i mean this is probably true in poodle the poodle association and it's that's why we have an amicus brief from seven different other horse associations but the breeder to you know exactly so you know all of those are vulnerable every time they make a change in their breed i mean suppose this change it's it was a few years ago we don't want so much white on the on the you know on the snout of the horse that's a very important question because any of that exclude somebody right and anybody can make exactly the argument that you're making a wonderful question but i don't draw that conclusion these associations have the authority to define the breed they can define what a quarter horses and for example with the white not worry about not making your point softly as i said the market is the market the elite quarter horses but in particular with our damage model for studies and your ling's that would have been yielded now under that in jury instructions and the law the first thing you do is you look for inelasticity of demand and it is demand responsive to price and we have put before the citations it would be twenty eight forty one thirty two seventy five and exhibit ph d nine page thirty one what those pages say is that the number right witnesses yesterday another witness is asked how many elite mayors are there he says well there are fifty blue hymns that call and a few hundred that are good this quarter horse association itself a den of files forty their offspring do in racing they publish those lists that's one of our criteria of elite they know who these horses are there's no denial but on a horse that the horses we know from this testimony were elite now let's go to the market the market this is something i haven't seen in egypt this is a chart of any plasticity of demand which is what tells you whether there's a market a separate market or not this is a chart for heroes that was one of our damage to me and what it shows is the it shows that demand for the horses is very sensitive to price for the first ninety five percent so ok and then at the top it's very inelastic and their expert mystery which is the test for separate more you're not going to increasing these not these type of horses is not going to change the i'm willing to assume that's the market ok although you know again do you have a sense as he said do you have a single case where animals or humans have ever been held to be at some market never held to have a case where they were  who are in the relevant market to us had were the ones who excluded you from that market and this record is full of that evidence because these people set up  got to assume they're probably some breeders in that the don't breed really quarter horses in that i mean and therefore it gets back to it's like being your let's say you have an association of steel manufacturers and you've got a group of them within the standard setting big business and a few of them are produce the you know the most high test specialt the world and they'd find their product in certain ways but they don't control the standards committee because they don't have the boots that brings in consolidated mobil which is helpful and put no twenty one  consolidated metal notices in that court that in that case the standards were not a matter of law as they were and how hard the level and as they are in this case they in their brief have listed all the state statutes th give them market power furthermore in the in the consolidated melkor as opposed to ninety five the court specifically noted that the committee was composed of users but competitors final word about international boxing which we believe is is very much on point in this case as well as as well as in the other price cases whole foods market geneva so forth there is the analogy possible future clothing in the international boxing case what was the measure of the court look to the patent market it was mot the prices posed to the competitors just like you just like we're not talking about the prices the horses so much it was the prices paid for the tickets to the competition just like we are talking about the prices paid for the breeding rights to these horses it did not matter whether the fight ended up being a good one and not the market was defined by the ticket price and in this case the market is defined by the price of the breeding rights and studies and even if some of those horses dot go off and win races it doesn't matter that is part of the barrier to entry that we want to break down we do not want to race the choices we want real nobody's prevent you from breeding them but we can't register them you can breed them on you running you can you can create your own market because somebody i mean the only way in other words the only way they prove themselves is if they race and win a bunch of money allocate money right they can't run course they can race you put them on a racetrack and you release him you can raise it suppose you can you can breed five or six of them and horse is virtually worthless this court said this test was did the people who made the decision have an independent economic interest independent stake in the illegal acts we prove that it said that in this case they were acting in one they call the opponents a club that was supposed to meet and a cut of the concise they call the up there was supposed to meet in spring of two thousand and twelve they called it they had sent an e mail saying the opponents of clothing were supposed to come meet with the executive committee in january after that meeting the president tells our people we've got a chance here the court my name is nancy stone i have represented abraham invent a clause in joint venture since the time that the complaint in this case was filed as judge joan acknowledged a q a j was neither able to convince the jury in this case nor judge robinson about those things that they complained about today again this is a case in which there was factually and legally sufficient evidence to support the verdict of a properly o judge robinson did not abuse her discretion in entering an injunction following the verdict of a properly instructed jury that made its decision based on legally and and factually sufficient evidence in the exercise of her discretion in connection with granting the injunction judge judge robinson held an evidentiary hearing on plaintiff's request for preliminary for a permanent injunction at the injunction hearing itself it became more obvious that there was a need for the court to enter specific orders with regard to rules that needed to be revised because even after the successful we had successfully tried the case to the jury verdict to a jury who had denied all of or had not bought all of the justification for they q a q ha brought forward a q ha still at the injunction hearing was trying to assert that the judge should limit the injunction only to marriage that there should be discriminatory rules and regulations on clones and their offspring that there weren't on other horses and again those were the justifications that the jury had already objected to or had rejected at the conclusion of the hearing when judge robinson announced that she was going to enter an injunction requiring a q ha to register clones and their offspring she requested that a q ha give some input into the  order specifically stating that by doing so they would not have waived any of their objections on appeal or in connection with any objections they subsequently made in the trial court to the injunction that would be entered they chose to do nothing two days after the hearing on the injunction she entered an order this is document number one thirty six record on appeal number two zero four nine she entered an order specifically requiring a q ha to address each specific proposed change in the rules and regulations and state the requested alternative to change the rules in response again a q h a did nothing they failed and refused to point out even one problem one omission or one conflict in the proposed rules with those that were already in existence the end injunction that was actually entered was narrowly tailored to address the violations found by the jury and also in order to accomplish registration of clone in other words just abolishing rule two twenty seven a would not result in clones and their offspring being registered on three different occasions ha ha had identified twelve specific rules that it would also need to be changed therefore when in charge robinson entered the junction in this case she did just that she set forth specific and for the most part minor changes that needed to be made to many of the rules to provide for the registration of these horses she exercised her discretion in entering the injunction and ordering revenge to the very rules that a q ha identified would have to be revised to brought them to term recipient mares all of all quarter horses all only quarter horses whether they are born through cloning procedure or any other advanced breeding techniques are all carried by  american cool horse association well at the time that that the time that cloning first began first of all there was and there was plenty of evidence a trial about the history of accepted breeding techniques by and one of them multiple embryo transfer was was only allowed by after a lawsuit was filed so and furthermore the our clients in this case by the president of a were encouraged that in fact this rule might be changed and so it wasn't until after the june behind closed door secret serendipitous meeting took place then it was taken out from under them but up until that point time they were hopeful they had every reason to believe that the rule would be changed to allow for these horses to be registered horses are registered with such advantage greeting techniques now that they freeze embryos they have been in freezing semen for a long time so and they're also produced through a procedure ixia which is performed in the same laboratory and if you weren't a scientist you wouldn't be able to tell the difference between except for seizure and cloning procedure so why didn't they exclude  also breed elite animals i'm sorry i thought one of your one of the two plaintiffs in this case brewed elite quarter horses as well as invested in clones they have no the testimony of the testimony was that neither one of them had any elite quarter horses except the clones and their offsprings which their offspring which they are unable to i mean you know it's a fine to have a lawsuit but i just have one other practical question are your clients are both well heeled evidently and to support this cloning enterprise and why couldn't they just buy an elite quarter horse and go into the breeding business and then get on the committee as i'm jason abraham testified there weren't any for sale that the horses that are in the truly elite market the sale of those horses are few and far between that was the testimony that jason abraham gave well how do you know your guys would get into that market then well they'll get into it if if this court affirms the judgment of the lower court because the horses that they have right now their clones their clones and their offspring are elite procedures to delay decision on the first request to it for real change so that ha ha could shore up to its defenses that it identified as red herrings and dead ends and feigned fairness in anticipation of a lawsuit the specific injunction entered by judge robinson was warranted and necessary to prevent the powerbrokers on the stuff books and registration committee in conjunction with a q ha from continuing to exclude at the case carefully please it deals with the issue of whether an agent in that in that case concerted action was not challenged a competitor had an agent in's hour had a conspirator inside the organization and wrote the the rule and it was discovered later the only question the supreme court considered is whether an agency a law applied to antitrust law so it doesn't support his position  the issue of conspiracy please consider this is well you've got to have separate economic interests that are pursued their testimony from their witnesses are the board of directors was against clon step up registry was against cloning our members polled eighty six percent were against everybody was consistent the experiment going who remembers you on who your members the members and in fact an interesting we did a statistical survey of three thousand one thousand responded they were picked at random ironically what the apple least chain you claimed is it wasn't a good study because they weren't breeders exactly contrary to the argument you meant they make now let me turn to the breeder argument mr mumford is right in one thing but quite wrong in another the testimony there was testimony from his clients that all of the stuff book registry people were our readers but in his brief he tells you that only five were involved in the elite market and that's precisely right that's what his brief says and that is the case now as to the stuff registry committee absolutely controlling everything that is not true the  standing committee in the organization it works in conjunction with and reports to the board of directors it makes reports to the annual meeting and at the annual meeting it the membership hears what their recommendations are what the board of directors has a chance to pass on any recommendations and determine either of formative or negative votes on that only the board of directors can speak for the organization and that is t now the the other issue that i think is is is so i am getting off just one thing here can the five control the thirty and is there testimony is there opportunity i guess there might be is there testimony no the only testimony they had me is that  of their clients said yeah i think they control and then on cross examination said do you know are you speculating and he admitted it was conjecture step up registry people were called of the ones the cult said there was no nation or anything else on the secret meeting i stand by what i see it and i ask you to look at their brief in what they refer to because it's p x ninety two and mph ninety two is an email from the president inviting stub book registry people to to to attend as to the study we did not open on that and chose not to address it but i'll address i mean she's not the stake the injunction we got as state of that injunction pending this appeal and that i think is the important thing it's important to know that what happened here i have a district court right your honor yes yes absolutely and this  the briefs that we drafted actually the very rules of the court adopted in the injunctions not true they were they were drafted by mr holly who was representing some people who wanted cloning they were looked at us because we did put a normal organization would do we decide it will take a look see what these things look like so they can be discussed in studies done we get criticized interestingly unfairly on the injunction part of having participated and agreed to look through the the issue of cloning and decide this don't talk about one other thing that again did not come up in the rest of the arguments and certainly didn't come up in the opening discussions and that was the issue of advanced reading technique so yes there are a lot of and there are a lot that have been approved there are a lot of people on that side have  actually sued over to get approved but the truth of the matter is the difference between cloning and the difference between between those techniques is cloning is a creation only a creation everything else that we have approved is breeding with a sperm and an egg that has an opportunity to advance to breed of course cloning duplicate what we have and i think that issue is important as to justification and been weighing the benefit if you will between not voting down the rule on cloning and in and i competitive in ten one thing and it would be what i close with there are good reasons that this organization voted down the suggestion that we redo our rules to admit clones one of the things we've been able to do over a long period question that way we take human frailty out of the market fraud deception simple mistake we're able and that's part of the integrity of our greed registry that can't be done in some horses in cloning that will not be available their suggestion is is well you do it you do it anyway for twin st you could be sued and you have beg pardon b