magic word in the n t trust unfortunately you folks won't have the fun of dealing with that because in this case there is no serious issue but that the evidence of anti compared of conspiracy of anti competitive affect and injury are literally overwhelming let me take a couple minutes of the precious time to tell you about what this case consists of these companies that acts u p s and their predators before them d and airborne engage in shipping small parcels for packages this is a you multiply billion dollar business and up through two thousand and eight the plaintiffs and other companies similarly situated called third party consultant negotiated with you cut to the chase a little bit because i've got to say the i need help with the record because i've really struggle with the voluminous record in this case and part of the district court's criticism below in  looking at the record that was before the district judge and we're saying ok that's that's a discretionary call by the by the district judge not to allow you to basically correct those deficiencies now under the record that was presented to the district  court i want you to kind of play out your per se antitrust violation claim an argument and perhaps help me with the record are you saying that b defendants u p s and fed ex  refuse to deal with the third party contractors or are you saying that they refused to deal with the shippers who utilize third party contractors the basically refused to do with third party contractors and then there was persistent violation of that then they would just threaten the ship and that they wouldn't take their ship would you give us a market definition been there were just a market for third party controlled services is that what it was frankly we adopted the definition that judge consulting services in the shipping industry somewhat broader actually i like the the i like the one that u parcel carrier contra negotiation services that city are five forty five and if he had just simply chosen to adapt their definition we could have gone to trial but it's completely off the wall of for him to left this conspiracy intact based than a determination that there wasn't a just controversy about how to plan the market in fact if there wasn't a judicial diverse into controversy it's because the o p s definition was probably correct and it's probably something we should have accepted we in the answer to that is overwhelmingly yes we would have started with the u p s definition of personal period concrete negotiation services  looks like and then afterwards any question about u p s observed earlier thirty nine thirty five quote we must consider third party negotiators as a direct trying to convince customers that they can do it better than my client or other third party consultants it's a recognition that they compete on the consulting side not just as the ship product of concert taping concept consultive services i'm not sure i understand it but i do believe you could make a larger market out of shipping services and label these third party consultants as judgment whose case is a walk on to the jury must little more than mine and management yellow pages all cases in which consultants were influencing the market in a downward direction by negotiating contracts that were less favorable to the defendant group as here than would otherwise have been the case and by doing that they invigorate the definition of what constitutes a market any number of one through three cases would say that the test now if you apply that test they have a judge bernard stopped to apply that as it's avid and it's evident there's no factual dispute but that the third party consultant activity took money out of the pockets of u p s and that acts because they reduced the the charges they made to the shippers remember the defendants that's what we get that's why we have jury trials none of it is summary judgment material and yet he said as a matter of law you get tossed out here because you didn't include every possible rape have sufficient wisdom or experience or knowledge that you could help the jury understand if you and mr reiman could have done that just busy done in three other cases testifying as a witness an anti christ issues which he sufficiently pled it in like their third amended complaint or second a minute complaint but she also repeatedly said in the order where she did that that it might not withstand summary judgment once the facts were developed and that's clearly not the case here your honor  under morgan strand is the plaintiff's burden to define a relevant market and the plaintiff here has utterly failed to do so he has no evidence the only expert that they proffered has been properly struck not just because of his qualifications but also because he has no reliable method in fact he testified that his method is whatever i'm thinking about at the time it was clearly not an abuse of discretion to strike mr rahman and therefore that leaves the pla f the client to hear with no evidence of a relevant market just as she may you asked what market he would propose and he's today adopted the market that you p s and federal express suggested in the district court well again it's not the defendant's burden to come forth to the market and as i'm asked never adopted in fact fought the market that u p s and and fed ex proposed in the district court and with good reason u p s and fed ex don't participate in that market the market for rate negotiation services every shipper who testified every shipper who testified testified they would not switch from a third party negotiator like a f a mast to u p s or fed ex to provide the services that the third party negotiators provide that the relevant question under map of oil under this court's cases were due to determine who's a competitor we do not participate in the rate negotiation services market and so if faced in this case we're on our fourth i'm in a complaint they have no viable antitrust theory they've tried to define a market judge morrow and this lead dressed dismissed judge reinhart the they can't define a market in which they participate and u p s and fed ex participate and the rate negotiation market is not a market that u p s and fed ex were surveyed in and so participate in the market and be harmed at that market and the defendant has to participate in that market with them and u p s and fed ex don't participate in the rate negotiation market so in answer to your judge your question just as they change their market yet again here today they shouldn't be allowed to do that she just affirm the district court for the reason it gave but even if you were to consider that market it doesn't include u p s and fedex and therefore it it they lack standing if that's their market and you should affirm for that reason so either way there's no viable antitrust claim here just when you ask and he suggested that their claim was that that the carriers refused to deal with the shippers there's no evidence that the curies refused to deal with the shippers they dress these issues on a case by case basis they'd never argue tying you suggest that they've never argued that nor nor would that be  a viable theory as i just explained u p s and fed ex don't sell the great negotiation services that the third party negotiators sell fundamentally what they're selling is taking in proposals from multiple carriers analyzing them and helping shippers negotiate with those carriers and u p s in fact don't do that and as i said before the customers the shippers recognize that u b s and fedex don't do that and uniformly whether services are reasonably interchangeable so if you look at the rate negotiations or is market allow that he forgot that market on appeal for the first time they don't they don't participate in that we don't participate in that market and they lack interest in it  judge when to answer your your record issue point one we believe is well within the just discretion not to not to look through the record and hunt for their citations this is a huge record and they should have complied with the district orders but it there would be no basis to send it back on the arguments they've made here because they've pointed to nothing in the record that would potentially change the outcome so whatever the district or did or didn't see as a result of their lack of the pin sites they point to nothing that would be changed as a result of that i'm happy to answer any other questions your honors have otherwise we would request you affirm only as you question about  some of the things that he said he's not an economist that's new york two to eight three to eight six he has a legal background but it's not even principally in antitrust law he has no industry expertise shipping industry to he would need to have some relevant experience to the issues he was proposing to testify about hear about experience but you don't think exposure to the economic literature is  the partial industry unless he has some experience in the parcel industry he would need as the district court correctly concluded judge to seem he would need one or the other or both and he has neither so he's not an economist by training he has no background says when you say back on i think you mean a ph d or something like that no not trained in he's not trained in economics he's not he's not formally free like you're not trained or maybe your training like you know i'm not formally trained in thank you very much i apologize your honor he was and he was an industry expert in those cases not testifying about economics and they dealt with both media and communications but so but even even if you assume he's qualified in some way there were two separate reasons to strike him and the second ground is completely sufficient the second ground was and it's that is that his opinions were not reliable and would be unhelpful to the jury e r nine three five he testified in his deposition quote anything i'm thinking about is part of my methodology e r for seventy six well it in a sense that's true you know in a sense and in the same way his report reads like a legal brief your honor so it doesn't really like something that would be helpful to a jury and if i may he said he could not identify a publication setting forth a supposed method what is method entailed or whether he or anyone else had ever used it e r for sixty eight for seventy four and reversed under that standard this expert has no reliable method there will be no basis to allow him to go to a jury but on reply if i'm asked as in the reply brief in this court that whether he's in or out doesn't make any difference that they can see that it doesn't add anything and it doesn't because he's really just writing a legal brief based on the facts and the facts themselves are insufficient so even if you work to think that he should have let him in the outcome here would be the same and the judgement competitor that's enough to raise a pact to shoot to deny summary judgment regardless of what the lawyers say second in the altered case this court said called defining the market is not the aim of the n t press law it merely aids to search for anticompetitive injury which is not an issue in this case because the agreement so if it's not the seen the qua non of the anti christ case why do you grant summary judgement on it five times four times were my cases five times this court has said that in the ordinary ca the definition of the market is an issue to be decided by the guru not the judge the evidence in this case was highly complex and there was absolutely no basis a judge to step in and violate the protocol it says on a motion for summary judgment he doesn't get to decide that that finally on brockman you know he testified in three cases all three times market he testified about competition issues and why certain conduct was anti competitive in the in the dodger case dizzee channel case he addressed why the studios all finally it's another mis represent gross misrepresentation here he did and they know this he did an extensive study and the united states postal service that's what called them  participant so mr bratman was going to explain to the jury why the us postal service was in as really competitive and why it is correct for u p s and fed ex to describe themselves because the postal service was not an effective or efficient competitor so there was a lot he could have brought to the table and even allowed to testify and finally you know the whatever extent plaintiff's evidence regarding procket product market is the vision plaintiffs surely have been given an opportunity to remedy did two fish and six i don't know whether that winds up being discretionary or not but to me that's pretty much an admonition that he should have instead of striking the evidence and than allowing this to go forward he should have taken the time and said ok and that's what we think ad management directed him to do and that's what we hope you will direct them to do when we go back