the market for online book sales competition has centered around three dominant sellers amazon dot com barnes and noble dot com and borders dot com my client gary earlier was a direct purchaser of books online from and will him from borders dot com references its two primary competitors that borders dot com was having trouble matching and entering the online market that was amazon dot com and barnes and noble dot com more concretely the  bookstore industry the two dominant players are amazon and barnes and noble dot com these two two firms account for more than eighty five percent of online book sales and amazon sells between seventy five and ninety percent of that that was as of two thousand and two when market he brought this suit because to challenge an agreement between amazon and borders dot com as a result of which two of those three dominant players ceased to compete in the district court immediately after the right no your honor what happened was the first round of motions was the defendant's motions for partial motion to dismiss two of the counts those were denied without prejudice to them being resubmitted on summary judgment then the parties agreed to an early round of briefing during which we moved for a judgment on the pleadings as to liability on some of the counts and they cross moved for summary judgment and toda the district judge and it's important to keep in mind here that there was a scheduling order case management order entered by judge patel by stipulation of the parties that discovery on issues of damages and i competitive the facts would be deferred until after those motions were decided and that once those motions were decided if the order didn't resolve the case that discovery would last for approximately one year or so as those early versions early round of motions came to the district court no discovery on injury no discovery on damages and on standing because one must distinguish i submit between injury for purposes of training which is termed injury in fact and money damages to recover at the end of the case to recover some compensation we would need to provide pretty much  with respect no your honor standing attacks the question of whether there is a legally protected interest that has been invaded by an alleged adverse of fact caused by the defendant's money damages indicates whether you win the the jury found that we said suffered no damages that would mean that retroactively the court would find we never had standing to be in court in the first place and that clearly can't be right and we know it can't be right because that's the holding of this well there may be lots of reasons for not getting damages alleging a harm injury in fact and a legal recovery of damages and the point here is that the harm that we allege is that we were harmed in not being able to purchase burke books in a freely competitive market devoid of market competition and that is what the sherman act protects and ensures that is the injury in fact that we alleged how much if any recovery we would be allowed to receive would depend on the evidence of damages are different than a competitors and right well i certainly would agree with the last assertion that our damages are different than a competitor to prevail we would have to show the competition was foreclosed reported and that as a result we've paid more or we're likely to pay more for our let me make this this point by example we could have gone into court and said we don't want damages we didn't make any purchases after the agreement but we've made them before and we're likely to repeat them so clearly we would not be subject to being awarded damage yet because we haven't made a purchase post agreement but we would still be entitled to come in and challenge the agreement as being and i competitive even without speaking even while speaking zero dollars in money damages not in that account you would not under your california cause of action you wouldn't be not into prop sixty four you win big no no your honor i think if we were up past purchaser and we were and we made the claim that we were also going to be a future purchaser you'd have to show still have to show under prop sixty we're going to do seventy two hundred claim you have agreement as being and i competitive and causing harm to us and seeking jumped of relief to avoid that agreement all all while at the same time conceding that we be entitle to zero dollars in monetary recovery that clearly demonstrates that having article three standing does not depend upon being able to show recovery of damage well ok i don't let's let's accept that but let's just say you seem to agree that you have to show at least that were you to buy something but purchase a book when the agreement is in fact you would pay more then you would have if the agreement were not in that and i i don't you well i think i think establish standing to be in don't even have to show that for injury in fact you don't know your honor what i would do you have to show what i would have to show my client would have to show and what we did show is that before the agreement there was competition between borders and amazon dot com there was free market competition that there was an agreement by the defendants in the federal reserve result of that agreement competition and that between those two and that i purchased books or was about to purchase books from one of them that's injury in fact there's a difference between injury in fact but article three nevertheless applies and the argument the court here found a lack of article three standing what you wrote for the court was that article three standing as measured based on the allegations of the pleadings and that they had alleged these they had failed to prove to make that proof so they lost the case so you're creating and i trust the ending with with article three seeing a no your honor the district court found that we failed in both regards and i'm addressing the article three prong right now i think it yes i mean he can allege that he's probably going to be thrown out on his ear on a motion to dismiss because there are elements of the sherman act claim that he needs to plead but but there's no question that a consumer has standing to challenge the m a competitive the facts or the election competitive a fact of an agreement now here there's no dispute that there is an agreement between defendants there's no dispute that there was competition between the two defendants free of this agreement prior to this agreement and that there isn't any as a result is a result of the agreement least of the online route because borders dot com is no longer operated by borders dot com and that's a consequence only of the agreement and which is why a motion for judgment on the pleadings was limited to liability the parties will engage in a second phase of discovery this phase would address all remaining issues including relevant market definition competitive a fact class issues and damages this phase of discovery would commence with the court's ruling on the initial cross motions and would conclude approximately a year later a step for follow the point being that by the district judges own order we had yet to even commence and be allowed any any discovery on damages let me stop you going back to your previous point or an earlier point i thought that just to court dismissed the anti trust claims with prejudice and obviously she did that on the basis of no antitrust standing so she didn't just really find that there was a lack of title three standing it was the fact that you printers which she did in their order well it was ok my point is it was a summary judgment ruling was a motion to dismiss and she did it both based on article three and on and i trust she questioned whether we had either support either because she said well you haven't shown damages so you could have shown the quick to the agreement for a second because i think it's important to put this agreement in context there are specific provisions that we challenge on cross motion on liability on judgment on the pleadings section four point three of the agreement really as was one of the hearts of our argument prior to supreme being in place amazon dot com and borders dot com operated rival websites each and operated its own website independently each chose what books to the south and at what price the orders was losing basically the same amount of money that it was taking the end in terms settles only one product that's amazon books yes you will amazon books is doing is setting the price of its books but on two different locations yes exactly that's their argument but here here's the problem with that amazon le amazon took over the border side and so it's saying it's our books on those sites we set the price and nothing wrong with that stuff they're not setting the price unilaterally they're setting the price pursuant to an agreement with borders and that clause of the agreement has a limitation borders can that price if amazon prices a book on borders dot com at a greater price than at prices that is amazon dot com if the books are truly amazon's books and amazon's book only borders dot com should i get a voice in that price there there is not agreement between two competitors as to two different price as to what the president of the well you don't have that here you just have one product in the end well your honor we only have one product because of the agreement mandates that it be one product i'm not saying that that there's not a potential an address violation all i'm saying it's not price fixing well with respect we disagree then let me try to show you why because it you have to compare the before and the after effects to determine the effect of the agreement if you bought war and peace on amazon dot com before the agreement you can get a price of twenty dollars on one side in one thousand dollars on the other perhaps  or and you can extrapolate that hypothetical to other titles after the agreement that is no longer the reality borders of the site on the book on borders dot com will never be more expensive or our put it another way amazon dot com price will never be lower than borders dot com there is no longer competition on price between if there is not an effect no borders books on the internet at that point which is maybe again a different type of an actress violation but it's not pricing well we don't lifestyle so i don't waffle of violation of  section seven of the clayton act as to the whole agreement there's another aspect of the agreement as time is running out that i wanted to address which is a section six point one pursuant to the agreement not only did amazon dot com take over the borders dot com site for the period of the agreement but borders dot com is precluded from offering any books online during that entire period there by allocating the market for online book sales to abort to solving the amazon amazon is now a short as a result of an agreement with its competitors th will no longer have to compete online with borders dot com and that assurance come so there's a result of section six point one now even the district judge was troubled by that agreement and found that it wasn't narrowly tailored to avoid free writing if that was the justification but her only reason for not granting or not proceeding with that claim was that there was a question as to what the relevant market was whether was just online sales or online sales and brick and mortar sales of books and therefore we didn't know if there was a market allocation but the supreme court's decision in palmer of palmer v d r g of georgia resolves that question it doesn't matter whether you're dealing with allocation of two markets you get one i get another or two competitors within a single market saying we'll stay out of each other segment you get one segment either way it's an unlawful market allocation she simply used the wrong standard palmer b r g holds that he doesn't have much yet you  may please the court i'm joel sanders and i represent amazon dot com the apple leave scope agreed among themselves subject to the court's approval to share our time and i intend to cede the last three minutes of my argument to mr stuart counsel for borders the district court correctly held that the appellant lacks standing because he offered no evidence of the injury the district court initially to establish standing here the plaintiff would have to have introduced some evidence that prices in the market would have been higher after the agreement would have been lower after the agreement that in fact they were as a result of the agreement or some evidence that in fact selection for consumers of books was diminished as a result of the agreement counsel of one point one point where the plane  responsible for providing that proof but the district the district judge hears the the competing motions one motion the plaintiffs motion as i understand motion for judgment on the pleadings which does not require them to come forward with anything else other than what's in their complaint  you file a motion for summary judgment and then the district court has the supplemental order and says look i want to hear on the question of standing and give the players fifteen days that's not really time to sort of come forward with additional discovery or  prove at this time if they want to come forward with some expert witnesses that they could get on their own much less depose your folks that's that's a pretty tough schedule if they're all of a sudden went from a point of having to defend the complaint on its face on a motion on the on the but certainly article three standing that's very clear in the district court can require the plaintiff at any point after the close of pleadings to come forward with evidence of a triable issue and in high regard for order she wa that fifty six f discovery must identify by affidavit the specific facts that further discovery would reveal and explain why those facts would preclude summary judgment well as i understand the castle what was there i  sites from palin's counsel both indicate that amazon dot com and barnes and noble were the largest online sellers of books but the wilhelm declaration that he cited to indicated that in was that just amazon that borders would enter into an agreement for the purpose and with the effect of raising prices and allocating markets in a place where th implausible otherwise you're saying that per se a market allocation violations depend upon the parties percentage of business in the market or is it still per se to matter what percentage it is your honor it is not per se if the purpose of the agreement is not to allocate markets if you look at the broadcast music case which happens to be a price fixing case but it makes this point nicely says you can't just take the terms and go with appropriate would fall into that category the question is whether it's a per state market allocation just take a step back and we can go back to that point if we agree that there is no title as our article three banding we don't these markets and based on my analysis prices are higher than they would have been but for the agreements for our quick has been reduced if the district court were to find that sufficient then wouldn't that also require the district just one element of what the plaintiffs would have to show to prevail this is not sufficient for them to show that prices are higher that's needed sufficient to show injury but there are several other elements of the n i trust  would have to show and i'm lawful agreement and they would also have to show that the anti competitive of facts outweighed the pro competitive benefits there may be many arrangements that do result in higher did ask the correct question which is is there any evidence that prices would have been lower but for the agreement that is in the district court's ruling on this issue the district court  crisis had declined and under the supreme court's recruit kids it says that's plaintiff has a particularly hard time showing the prices would have been even lower you know market where prices have been declining and s prices have been going down but they would need to show that prices would have gone down even faster and she in she and the plaintiff had to give you a plaintiff an opportunity to come forward with something like that and  appointed didn't and instead said we want to depose national the plaintiff made the request for the deposition of counsel that was the only discovery on the point request that it did not meet the standards of rule fifty become in new york to you a discovery case where your honor if you do not accept our view on article three standing or an injury in fact whether there is sufficient evidence in the record of injury in found those now an interest in three in fact so therefore even if you lose the article three then you have to lose the address injury in fact which is is she also found and then if you get out and that's then you go and get americans that correct yes yes ok ok i don't think there are any question that was my impression you are as a judge b b raise the question about the discovery and where we were in that stage the important aspect to remember here is that judge patel granted a rule fifty six f continuance precisely because she recognized that there was a need for further discovery when we sought to avail ourselves of that discovery she had issued an order saying she had never contemplated us taking additional discovery and you have to put this in the context of excerpts of record one twenty five which is the management order in this case contemplated and ordered us to be foreclosed from taking discovery on injury and i competitive the facts until after her decision and that once we started that process it would take a year to do to say that within twenty days we have to put forth an expert when there's been no discovery on injury or an a competitive the facts and simply have this experts put out an opinion on what the prices would have been as satisfying just for television he said that she found that section four point three did not constitute per se price fixing and she also says that to standing what you have in regards to standing so that's right above but the issue of stand her doubts as to the issue of standing came about as a result of the fact that she said prices have dropped four times and you haven't showed that you would pay a higher price you haven't quantified what the price would be that is injury and that is damages and you can't tell a litigant i'm going to rule against you because you haven't a deuced evidence of injury or damages while at the same time i'm going to have an order issued that says you don't get to take discovery and injury and damages until