the court my name is joseph alligator jr i represent the plaintiffs in a power in structural handling and quality transport think in this matter this is a private civil and i trust the action brought pursuant to sections four and sixteen of the clayton act we are seeking injunctive relief as well as treble damages that resulted from injuries sustained by virtue of the defendant railroads violations of sections one and two of the sherman act under section one we have alleged that the defendant participated in a per se illegal price fixing agreement also under section one we alleged a per se illegal tying arrangement are section two claims include the attempt to monopolize conspiracy to monopolize and actual monopolization pursuant to the essential facilities doctrine below the defendants move the district court for summary judgment on all of the antitrust claims we oppose that motion and we also file the cross motion for summary judgment on all the antitrust claims in two separate decisions the lower court granted the defendant's motion for summary judgment and denied the plaintiff's motion for summary judgment and answer the judgment favor of the defendant and against the plaintiff as to all claims we are asking this court to not only review the grant summary judgment in favor of the defendant we are also asking this court to review the denial of summary judgment which we move the lower court for generally speaking a denial of summary judgment is not a review order however in this case when it is coupled with the review of the grant of summary judgment it is reviewable we are asking the court to do so here we believe that there is no genuine issue of material fact  defendant in fact did violate sections one and two of the sherman antitrust act now this is a large case and it is factually complex however if there  fundamentally this case is about coercion it is about the use of power over land and terminal sites to force translators into abdicating their ability to price their own products the defended railroad used its power were quote horner acard here we find the evidence that they are all involvement on the railroad in the setting of translating crisis this is the key the key is that the translate facilities that issue here are extremely unique they are set first of all must be set right alongside the railroad so that immediately narrows the universe of available facilities they must be specially paved they have notes dug around them to prevent  unless you sign a trans load service agreement which we have referred to in the breeze as a t s a unless you sign a t s a you will lose your lease on the terminal site if they lose their lease on the terminal site the end result of that judge can be is that the translator is run out of the market now therefore the coersion issue is if you do not sign the t s a then you will be run out of the market ok now so far we haven't mentioned price and now the t s a has the translators prices inherent in it and the railroad the transponder prices but the railroad your independently no you are and that's the key if the translator does not agree to the price that has been proposed by the railroad because these facilities are so rare they will lose the lease on the facility and literally be run out of the railroad was as follows for a bundle rate when you're doing the bundles packet you can veto the price suggested by the translator for the translating part price part of it is that right answer next question is ok can the translator veto your price for the real portion answer no question and by translator i mean even in the instances where you've said before sometimes is someone who does both translating and trucking sometimes the trucking sometimes a trucking company doesn't translate let me start over to be clear neither the translator nor the trucker can veto the real price and the bundle price is that right answer if they price their portion of the rail if they price their portion of the overall bundled price to where it's noncompetitive which rock and then the transcript dense so the result your honor is that the translator has no say over what the railroad prices however the railroad has veto power over the prices that the translator can charge now as i said before the key to the entire case comes to the coersion over the leases if they if the translator refuses to price according to the judgment of the railroad then the trans load of stuff or by losing its lease and being run out of the local market let me emphasize this point with another with another quote also from a farm one of the railroad executives question ok but if you wanted to if they suggested a price and you didn't want to go along with it you wouldn't agree to it then you could reject that price couldn't you answer if in fact we didn't feel that it was going to work in the marketplace we could reject it if they reject the price that is offered by the translator the end result is that the trans loan service agreement does not get signed and without a trans load service agreement signed trans loader loses the lea on the terminal and again terminals are themselves very very unique it must be specially built and specially permitted and without a terminal a translator cannot opera market market in this particular case is translating service itself let me let me provide surely provide you with a brief factual understanding this case involves the long distance rail shipment of bulk commodities usually a thousand miles or more from the origin to into local municipal markets so the product will travel a thousand or two thousand miles even sometimes into a local trans loading market there at that translating market and in these cases in this case el paso and in denver the product is removed from the train and placed onto trucks where a very short distance usually under fifteen miles to the end consumer it is this portion this translating this changing in trucking to the end consumer that the railroad has never been able to control what they've done in this case is they announced an intention to control the whole movement from door to door in this entailed their attempt and their actual success in monopolizing the trans loading trucking local markets so that's where they was slightly different el paso consisted of four separate facilities these facilities are operated by can be operated by different different parties there are four separate leases so on the four separate leases are five different places within the el paso market all four of them were cancelled and all four of those not some but all for giving to the other coconspirator in this p which was a request for proposal and this request for proposal required of both the signature of the t s a and also the signature of a leas my state there is no evidence that stagecoach sign one or didn't sign one the only evidence you are in the record on that is that is that stagecoach could not find the t s a in its files i have seven minutes you are remaining it i'd like to reserve it you please the court my name is jeffrey cross and i represent the burlington northern santa fe railroad let me answer a couple of questions that were directed to mr elliott although there is no evidence there is no evidence that any leases were terminated because of prices that translators gave to the burlington northern santa fe indeed the undisputed evidence is translators were free to provide prices to burlington northern santa fe free to withdraw all those prices if they felt that the marketplace changed free to select certain trance love boat months that they would price and those that they decided they did not want to price but the veto language that mr elliott who has referred to means that if burlington northern thought that the price was out of whack in the marketplace it could say we're not going to submit that on a on a bundled rate to our clients you can go ahead and go she ate separately on a unbundled move but we decide we're not going to submit that on  a bundled rate because it just is not competitive in terms of the stage coach signing a lease they did not sign a lease and in fact there are a number i mean accusing t s a i'm sorry and there are a number to compete with trucks trucks really are the competitor of the railroads to compete with the trucks which can go door to door can go to door to door very easily a truck can be tracked a rail car could end up sitting in a yard waiting for a train to be put together and then go to another yard and wait for another train to be put together as it goes over a trucks can move very quickly they don't carry as much but there's a lot of value that is the competitor to the railroad so the river decided well for those shippers that don't have them the option of one price not require shippers to have one price but the option of one price then maybe we can compete in fact mr schorr no the president of truck rail handling the pla a bundle in el paso only three percent so shippers were electing the unbundled i'd like to quickly address a couple of points now that the plaintiffs made in their reply brief which we of course than have a chance to respond to a couple points that i believe are mischaracterizations that the statements of the of the record first off in terms of price fixing the allegation of price fixing their attack really is on the concept of this most favored nation is cause that appears in certain leases which says that we expect the lowest issue that they raised terms of the market and whether there are alternatives for shippers and one of the things that they argue is that in el paso they admit that they were able to go to the union pacific and operated translate site in the el paso market after they were terminated at the leases that at el paso and i should say by the way that prior to their termination union pacific was not adequate even though their president mr shaw no again admitted in his deposition that he could do everything at the union pacific that they could he could do at the burlington north but they argue in their reply brief well large percentage over fifty percent of the truck that traffic in door paso is locked locked in to the burlington i won't read it through the court but in that testimony mr him both says well i could switch i could switch as long as the station was different so if you asked me the question was i locked into what's called an o t pair or an origin destination pair i was locked into an order by my contract but if i could move down the road to another station such as the union pacific station  in the in the region i could make that switch i'd also like to address quickly an issue that they raise in their reply brief in tourney turning to the issue of whether trucks are in fact competition to the railroad they are alternatives for shippers in the marketplace and one of the things that we did is we cited a  surface transportation board opinion where the surface transportation board approved the merger of union pacific and southern pacific and in that opinion they recognized that trucks really are the the competition and therefore there is not going to be an applet power in the marketplace because shippers could turn to trucks in their reply brief the plane is the tack that on the grounds that oh we forgot to tell the court in fact their brief they say we purposely forgot to tell the court that what it is referring to are golf coast traffic but in reality when one read declaration which is founded three are seven o two it's clear that they source customers from the gulf coast customers from maryland louisiana point comfort texas houston texas your part texas into el paso in fact of his list of twenty nine of his customers and or paso came from the golf course coast still there are certain what's the advantage to stagecoach and having a lease on the facility well because they are they they're the operators of the facility i mean truck rail handling has to go through a stage coach so for example there's a limited number of trackage space so if truck rail handling all the sudden had fifty cars arrive that were don't think it is they may think it is but i don't think it is i mean it's it's like any facility that we used to give someone a lease but it's the same thing happens in the let me go back the other direction again if it's if they fill up the trackage with their cars then no one else can use that trackage if they don't fill up the trackage in other translunar has to come to them and say can we use your trackage so the disadvantage to truck rail  disadvantage but i suppose you could say that that's a disadvantage let me also say this that there are in within fifty miles of el paso there are approximately  true that there are other many people out there who have not signed the t s a get to what what do you regard as the markets that we're dealing with in this case  we believe that the market is the boat shipment the shipment of book commodities and therefore the players in that market are rare roads if you can go door to door railroads and trucks such as the u p a and truck rail handling in el paso but a link to northern and stagecoach or all trucks there for the players in the book transportation of goods or all of these players and that's significant from a nanny trust perspective your honor because from a nanny trust perspective the issue is when you do the cost at last  of demand analysis that this court in rebel oil requires and you do the cross alas the city of supply analysis and by the way this court in the tenant case also requires that you do that analysis in response to super competitive prices in other words prices above the market level you don't do it in terms of what actually exists have the increased prices of both competitive levels then what would happen would they be able to go shippers be able to go to other alternatives then you don't have market power if news people were able to come into the market and build trance look the syllabus then you don't have market power and i belief is with that that market which would be the which would be the tying market in the top i mean there is no showing of market power in summary judgment is appropriate what are they allege that it is they are translate facilities and trans load services the other they actually in footnote number two with their reply set forth a second time market the second time market that fits just fernandez i'd like to get to one of the points that you were making the counsel for the defendant just stated a moment ago that truck real handling is able to use the facilities in el paso that's not correct the cities in el paso are what are called quote closed facilities this is the testimony of the president and c e o of stagecoach is volume two of the excerpt of record page five zero five line seventeen through twenty two quote i look at the track and this is the way i view the track that track all track that i lease and i control basically who has access to get cars or who can unload off of there and i use it pretty much all for my own purposes like to get to another point that was made earlier as well and that is the translators are free to charge prices of their choosing they say that this is a free arm's length deal to negotiate the t s a it is as arm's length a deal as it is if you were negotiating a contract with one party holding a gun to the other party's head you provide me a price go ahead provide me a price if you don't provide the right price you will not only failed to negotiate in complete this contract or to negotiate and complete this t s a will result in you being a limb unaided from the marketplace the other point the council said that is not entirely accurate is that even if the trans loader or the shipper does not like the bundled price that's offered by the translator running the t s a that it can go off for a lower price  the shipper unbundled indirectly in essence that the that the t s a holder can compete against the bundle again that's not accurate both stagecoach and savage both agreed with the four zero question but i mean the pricing that you submitted in the trans load agreement was that supposed to cover the prices that you would be charging for bundled and for unbundled answer i would say yes yes for what we knew at the time when you have the favored nation clive i recognize that the translator cannot sell more cheaply than the price it offers to the railroad the what is the competitive in terms of their railroad or wanting to get our low price quote from a trans so they want competitors who will offer lower prices what they're able to do is in el paso in both in el paso and in denver the railroad was able to consolidate the translating market in so that only one translator was markets for every every part of the country which are when you know with respect to these particular services for what we're talking about is transporting goods from one year yes you're on let me address that each and this is laid out in very very factual precise language and the facts are outlined in depth in brief however the nature of trans loading is that it allows shippers to use the low cost option of whale shipment and if i am not sure if i am a consignee that is located off of the rail i don't have access to the rail i do so the whole point is to bring the shipment long distances one thousand miles or more via rail and then when they are when the material is trans loaded it is then trucks a local just to understand all right now if they wanted to adventure rocket five hundred miles that makes no sense they would have simply shifted on rail closer to that destination the result of this is that each of these small municipal markets are literally located all over the united states but there are ways under the kind of any trust analysis to define a market on what would happen with a hypothetical monopolist if they were increased the price in the translating services the result was that we found that the next available alternative in these different markets was eighty percent the price would have been eighty percent higher therefore a monopolist could have raised its trans lowering prices by up to eighty percent without forcing shippers to switch that is the evidence that we have very very carefully and  newly outlined in the brief the translating market  is translating market and across the west a city of demand and supply is outlined very carefully here on the right page beginning of page sixty nine in the brief the evidence is too voluminous for me to go through however it does the very careful analysis of the prices that are offered for trans loading and that a hypothetical monopolist would be able to increase his prices by some eighty percent without any without to close just available alternative techniques that section your brief refers to the expert