relief but because the facts alleged in the f a c according to the district court could not possibly be true now there is no dispute in this record or in this case over the applicable legal standards as far as they go either for civil pretty pleading in general or for pleading a relevant any trust product market in particular the district court and both parties recognize the twamley and it do not require a court to accept as true allegations that are not plausible on their face are no more than speculation or legal conclusions couched as factual allegations the district court and the parties all cite the new cow and hicks cases as the controlling authority on pleading market definition in the circuit and we agree for example w cal that a complaint may be just missed if the relevant market definition is facially unsustainable for example because it's based on constraints imposed by voluntary contractual arrangements rather than market realities on the interchange ability of available alternatives we also agree that a relevant market definition that depends on implausible assumptions is facially unsustainable as in hicks where function when economic substitutes were eliminated from the defined market arbitrarily implausibly eliminating competing modes to enter into a sideline essentially becoming a de vore verger or a distributor of these restricted products does not mean that all that marion's can do it there are veterinarians that have only a few with something like fourteen thousand dollars veterinarians tremendous buying power from manufacturers and the capacity to enter into this market now the ordinary veterinarian is not going to do this nor are they going to be in a position p was one way or another and there are a few more that we need more that we know of and there may be others that we don't know of but what we do know is that there is a difference between functional interchange ability and economic interests into ability yes theoretically any veterinarian can sell product that they purchase from animal health manufacturers to a large retailer economically are they in a position  that r is say costco or a wal mart in a position to shop around with that marion's or enter into agreements with that marion's in order to get a small amount or some quantity of  product probably not a vet marion's unless they are dedicated or at least have a dedicated department to this type of distribution are not in a position to compete and  did did i know the ip so there's really four markets that we're talking about there is the manufacturer to the better or pharmacy there is the vet or pharmacy to the  retailers and to other purposes and your question about horizontal or vertical the answer to that is both as well i would say primarily it is a vertical merger because the distributor pet i q has the relationships with the ordinary unrestricted measured products with the retailers and the ip is a veterinary chain with thousands of mobile clinics and thousands of brick and mortar clinics and their primary business is veterinary services and the diverting of large quantities of product that there are a lot of buy manufacturers that does not mean that there was also a business v i p was supplier to our clients prior to the merger the ip was a supplier as far as we understand to some retailers prior to the merger and v i p s buying power has now been captured by p q which of course has got and they will and they will show you in their materials and extremely broad relationship with almost every major national retailer and so they are in a position to offer the tremendous quantities of restricted products that the ip can purchase from manufacturers to these retailers so much so that they themselves claim to have ninety five percent of the market for prescription veterinary products at retail so let me follow up on that the point you just made so that normally when you see a vertical merger  a description of the top market i don't know what i don't know what antitrust lawyers call this but the upstream market here here the vets to the diverters and you see a description of the nd market that diver to retailers so you think you see things like the complaint the den of thieves who the major players are and what their percentage of the market is what the concentration of the market is give you some sense of what this looks like the concern i have about your complaint is when i was done reading it i just don't have any idea what either of those two markets looks like except i know that meant that i'm sorry that he was a big national chain that i don't know whether it's one of who one of the one of a one hundred i don't have any sense of or what kind of market concentration there is in that market and with respect to the secondary market you do allege that ninety five percent of the pharmaceutical products but there's no allegation your brief says that pharmaceutical products are the principal segment of that nd market but it doesn't tell me what that means what am i missing something  complaint that would give me some sense of who the market participants are what their concentrations are in those markets sure your honor i think that the structure that you built with the levels of and where there is a vet between the manufacturer and divert her is not strictly accurate that's not to say that that structure cannot arise a divert or is generally a veterinarian practice with access to large quantities of product and it diverts the product whether it diverted to another divert or or to a distributor directly to a retailer we don't feel that that matters all that with pharmaceutical license licenses that specialize in this and there are a few who do you a benefit other than vi p in the segment of the market that is i don't want to i'm using diverters to mean sort of that rd layer do identify what we identify in paragraph thirty seven of the f a c three or four companies southeastern veterinary exports and lambert vet supply rainbow that supply that supplies these are diverters that we know of and one of the not are they people who get the stuff directly from the manufacturer they can but are not there not that it's they feel that they they are they are folks with veterinary credentials that are able to purchase from many factories in order for the manufacturers to represent we sell only to vets or vet pharmacies so the the idea is the key the key idea here is that there are a small group of companies that have the veterinary credential and they purchase the products generally from the manufacturers who sell it to them because they are able then to tell their veterinarians we sell only to vets but he would use the litter manufacturers from your definition of the relevant market and now you're telling me that they play a role of well they they are they are the suppliers and manufacturers they are not alternatives for a retailer to go to in order to get its supply so a really the group of products itself have two characteristics they are restricted in some way either like frontline plus because the manufacturer has adopted a policy to restrict it or they're restricted because they are pharmaceutical products that require a prescription and and the nd actually bute that they have is that they are repeated products for chronic preventative use not acute so so therefore there will be a large consumer demand large enough so that a retail box chain store will want to carry the product and these products must be sold to some sort of credentialed veterinary entity that can be a very pharmacy or someone with a vendor a pharmacy license or a veterinary practice there are a few of these companies we fully admit that we have not had discovery yet we don't know the identity of all of them we know a few of them because my clients have been in this business for more than ten years and  that is the funnel if you will through which these restricted products must flow to retailers now there are about a minute and a half if you want to thank god the last point i would make then and thank you for the reminder you are is that the question of market definition has to do with the choices confronting the end consumer which as the court indicated footnote they accepted we're talking about retailers so this is a wholesale market can a retailer call  manufacturer and say send me x quantities for the western states stores that i have you know they won't do that the manufacturers are not a turn to for retailers that's why they are not in the market  the court thank you for the opportunity to speak with you today and during these challenging times and thank you for all of the staff from the court and beyond that are helping with our virtual technology today to make this connection possible i intend to address the issue it's failed to demonstrate any ability to plead a plausible relevant market or a market power within any relevant market after no less than four attempts to do so meds claims under section seven and section two both require one plausible market definition into a factual cleaving of market power mets fail to sufficiently plead either in this case we agree with plaintiffs largely on the law which is also a great thing about this case for not disputing the law we agree th but the definitions and the lack of substance substantive plain pleading allegations in the complaint remarriage dismissal in this case mr ruben just stated that it is the customers and the consumers that are supposed defining this marketplace that is absolutely contrary to the holding in newcastle which states that consumers do not define the boundaries of the market the products or the producers do your honour's have already discussed how this playing this complaint and to exclude all others in an attempt to try to create a false market of want our client or maybe some others that we heard about today without any any factual pleadings of what the market structure looks like your hon asked about a supply side demand or or a supply sider upward competition or downward competition supplier demand there is no factual pleadings there is no allegations to give you or anybody else a reference of what this market looks like is different it's because virtually all other laughed at the scale and systems my client was able to do it if plain it was able to do it there are certainly others out there that are able to do play this reference multiple times the f t c report in order to all that's required is boss ability so the explanation for why all of your clients the only bet that's included in the market definition not alice is that your client is by far the biggest and it's sort of sui generis and that's why it's and you just say that you know there's no explanation about the others while they're there they've pled your client is the centrally sui generis and isn't that they do plead reasons for abilities were actually honor we accept all the well played allegation that's true certainly and we certainly agree that we're at a pleading stage here and discovery certainly i may reveal more information however this court under under new cal is not required to accept a complaint that is functionally unsustainable and that's what we have here we have a complaint that is inconsistent is vague conflicts with itself in multiple places in order to plead them out of court because this court does not need to allow this to proceed in the discovery which we know under twamley and i trust litigation is expensive it's time consuming and it goes on for longer than it needs to but that's the reason is a peeping measure  exclude them at least at the stage certainly around or in your right plans do exclude manufacturers but yet this is where they cite in their complaint conflicting exceptions that would swallow the rule here in their complaint that sites that bear major manufacturer is an exception to this rule and they try to navigate around by saying despite that all manufacturers should be excluded but if we look to the f t c report which is incorporated by pulling this in this case  submitted and we move filed a motion to take judicial notice of it which the court does below which you are entitled to take notice of is here and the plaintiffs did not oppose that the f t c report over one hundred and fourteen dollars pages and four hundred and fifty dollars footnotes details the competitive nature of this marketplace the competitive nature of all of the various sales channels of all of the various elements top down manufacturers that clinics wholesale markets secondary whole so markets retailers and also to the ultimate consumer the pet owner in this case and therefore without plaintiffs having a well planned complaint or factual allegations in any way shape or form to give you and sense of what this market should look like you can look to the c report to see there's a lot going on here in the ten billion dollars marketplace and to state that only our client has an excuse control this marketplace is simply facially unsustainable and therefore the court was proper to dismiss it what is the speculation you're going beyond the realm of reality where plausible where spatial and sustainable here which is what we have in this case where it conflicts with itself where in the document itself  in europe and decision in your opinion which is what the district court did here as well but to my mind that the plaintiffs tried to embrace the f t c report and say hob this shows you that this secondary whole star market is in fact the market in and of itself but they try to take the good and leave behind the bad because if you look at the f t c report it expressly states the secondary distribution facilitates increased competition between veterinarians and other retailers resulting in additional purchasing options and allege and say it is basically unsustainable to comport what the plaintiffs have pled and what the economic realities are in this marketplace which is what brown shoe and plaintiffs themselves have argued if we want to look at economic realities we can't be an ostrich and stick our head in the sand and pretend that the marketplace isn't what it is the f t c report gives us a glimpse into the view of beyond that in addition and i'll move on to market power unless there's other questions related to relevant market but with respect to plaintiff definition let's assume for the moment they are able to plead the relevant market will give them that let's assume you take everything as true as we're supposed to they have not played and cannot plead market power within the market that they have alleged here and plaintiff attempts to do it in at least two attempts they take a public document from my client a twenty scene public document that is referenced in the cited overtly in their complaint and try to argue that we therefore have market power  they have a they cite to a ninety percent ratio that ninety percent my client purchases ninety percent of their products from manufacturers an effort to say that we control ninety percent of the market that's just a plain misreading of the document just because i buy ninety percent of my cars from chevy doesn't mean that chevy is a monopoly or able to purchase from whoever we want and in fact as your honor has already noted manufacturers are not part of the marketplace so how does that give us any preference to what the market power should be secondly they cite to another page in the same document as safe we have a ninety five percent share in the prescription drug in the prescription medicines to retailers again vet is not the market they play perhaps if they  prescription drug marketplace then maybe we'd have that case but that is not this case finally or honors i would point to the judge's opinion page eleven where even if you please mark the power even if we plead irrelevant market plaintiff here has not and cannot allege that this has been harm to competition as we know from brown shoe and others the purpose of the interest laws are suppressed protect competition not competitors here we have a competitor met  vets and a medical which are suing my client because they lost yes there are winners and losers and competition every day that is what happens but best does not mean that there is a monopoly that does not mean that there is an a competitive conduct where we thank you know i'm jennifer parceling him from winston strong for defendants and i thank everyone for helping with the technical assistance today i'll address briefly the fill the plaintiff's failed attempt to try to get discovery before pleading adequately a claim that ruling by just me is subject to an abuse of discretion that require this court to say something like she made an absolutely clear error of judgment as with her decision on the motion to dismiss there's simply nothing like that here as my colleague said she got it right plaintiffs fail to show good cause to warrant a departure from the federal rules of civil procedure and the orderly course of discovery they're really asking for an exception to rules eight and twelve and they haven't done the work to set she deserve to kind of jump past those restrictions on discovery and as judge said has me found there's plenty of facts include facts about their own business in the complaint as mr rubin said they've been in this business for ten years but they failed to give any details about their suppliers their course of history the being foreclosed from the market anything of that nature all of that is absent from the complaint and so they simply haven't done the work they told judge has me that what they had done interviews of folks in the industry and were unable to find information that was helpful to them that may simply be because they don't have a claim here they failed to give a lot of detail about why that information was not sufficient why they couldn't plead to a claim and it was absolutely reasonable for judge szczesny to insist on  specificity in the complaint that consistent with one plea and with this court's ruling in candle that talk about the need for specificity in pleading before getting to what in and i trust cases is a hugely expensive and time consuming process of discovery and there simply aren't any unusual circumstances here that warrant departing from the normal rules as civil procedure all the cases plaintiff's cites it involve merger challenges where there is a  c and in those situations sometimes courts have allowed expedited discovery there's nothing like those unusual circumstances here and nothing like the other sorts of unusual circumstances that exists in cases that they've cited where there's ongoing infringement or things of that nature distantly argue that if they have this discovery the outcome here would be different and so they deserve it for that reason but that's speculation there's absolutely no reason to think so the f t c had all this information and they declined to challenge this merger more than two years ago critically of a lot of clothes and nothing about the market share market definition would fix the other issues that there are exist in this complaint things like the concludes reallocations of foreclosure which claim to place have sward be subject to challenge on again that those are simply conclusory and don't need the standards of twamley and that they haven't shown antitrust injury or antitrust standing because they've really only alleged harm to competitors and not to competition they don't even claim that thank you my apologies to address briefly the what it means to be unsustainable we take it from the case law that it means that there is no known universe in which the product market defined in the f a c could possibly be true so it means it's implausible really even though the united states government expert competition agency has described this market it's speculative really in spite of uncontroverted evidence of restrictive policies by animal health which forced retailers to purchase from unconventional that married prevention of the police sale or wholesalers or conclusory really in spite of the unique demands of large scale retailers and the specialized skills needed to supply counsel overlooks is the difference between functional and substituted substitutability and economic substitutability not all vets are created equal and it is no contradiction to say that there are a few vets that have decided to become divert errors and many more vets that do not participate in that market it's not a question of all or nothing for veterinarians it's a question of whether some of them want to be divers or not now with respect to the ninety five per cent share ninety five percent is the number that defendants used to describe their coverage of their share of prescription medications going to retailers what are those those are precisely the drugs that flow through the secondary distribution channel those are precisely the products that my client and the other diverges who are no longer in business because they have no access and no ability to get the market and sell to these retailers have been dealing with as well so we would ask the question and finally just with respect to be extradited discovery motion we would not need this discovery if the court were to apply the standards for pleading that exist in the law instead the court asked us for specifications that we will discover on discovery but cannot know without some kind of discovery and the purpose of our motion was simply to respond to the demands made by the district court is not necessarily on the face of the f e c to have the information because we believe the f a c s market definition and allegations of