this case the court found liability and then dismissed this case with an unsupportable causation malices it central that in this case the court began its summary judgment analysis by correctly finding th was the subject there in christie there was very little evidence that there was any interest in the bidding and they still found causation but to your question is really what is our best evidence of this and i want i want to address that directly because it's important  i would point you first to the i m s rick work i'm not sure how familiar this court with this is with i am asked but it's a very well respected entity that monitors the competitive aspects of the pharmaceutical industry both abit and our damage after birds rely on i am asked i m s was hired by apple to give a competitive analysis just weeks after yes yes diverted the distribution and development rights away from a large company to a small company and what did it say in its report to abba third party paid expert it says it's a surprise that a small company it's not a surprise this distribution ability the distribution rights and the development rights would be sold in the marketplace point in time but it is a surprise that it would be sold to a small company that could not compete with still seems to me you have to show something in the record that one of those big boys if i use that term would have been interested in terror had they only been able to get their hands on it without having to go through with lance and senate and that's wh examples ok i must report i believe as one of them because i think the reasonable inference from i am s s surprise that it would be sold to a small uncompetitive company indicates that i am asked thought that an unsurprising result would be that it would be sold matter is that abbott is arguing here that no large company would be interested in distributing and tara abbott itself licensed and distributes antero in thirty other companies and inherited  my acquisition i should say that heritage but that's absolutely right accurate your honor except for that what i would point out is that they had numerous other chances over a number of years to go with tricor instead in those other companies and jury to say abbott is standing up you're arguing that no big company purchased the rights to distribute this but they purchased it and third you know that i think it's concrete evidence can we take a step back from and and and look at it and i there the court said the m p was legally barred from buying processing or someone the vaccine because it lacked the required prescription drug license  so it looks like what the court was saying is there was no way in play trust the ending in that case because to have standing you've got to be a competitor to spend in the market and be in p could not have been because it didn't have the license to be so it was barred from being in the market and therefore no standing is that a fair reading  assume in fact for stanek purposes i think the treatises repeatedly say in the cases say assume injury in fact so we can give you your causation assume that it's an antitrust violation so we give you that and now the question is is this the kind of person who should be permitted to stand up and make that argument and martin pitino seems to say that in a regulated pharmaceutical market people who aren't licensed to play aren't that kind of person what that what's wrong with that line of reasoning which i hear coming from the other side  a competitor and the reason it's a competitor is because it's the direct it's the direct competitor it's the most direct victim of the case and it's when you say it's a competitor if you farm could not sell and tera in the united states entitled to make the argument i'm harmed in the united states when you're not allowed to do business in the united states yes the fact that we don't we outsource the distribution  in the united states when we manufacture and where the sole people and the factory allows us to stand under all its law under all the case law i just read you something from barton patina us it well if that were the standard your honor abbott itself uses other companies to sell products its products in the united it should not be of our own if the most direct victim it created this product in order to compete with tricor in the market sure any could have had it wanted to at the farm could have established itself in the united states right it could have come in it could have again the appropriate f d a approval it could have s a in its own main it could have done all those things but it didn't and that's the that's the factual circumstance we're wrestling with not whether a fine company could have come and done the things to be a participant in the market but that it didn't go through those doors it handed it to somebody else and said to somebody else go through those doors and i grant you that in an unregulated market that might be a distinction without a difference because if the person could just as easily have walked in the door themself and taken care of it then maybe no problem but in this instance you've got to do more than just like the clear yourself in the arena you've got to go through a whole bunch of steps and they didn't do those things so how is this different from like sigma forms and reported case but cigna form they've their due and it looks like everything except press in the pablum and the court says not enough you're too far removed here is how i would created a portion like a follow on portion of the drug it released in a license agreement it's rights to its ip and its rights to manufacture its sat back out of the marketplace as  license or collecting royalties there are other cases that are similar where an a p i manufacturer does this ethie farm is there is no case that i'm aware of where a manufacture this is what's puzzling to me about this this case your client your client created this wonderful product and and then gave complete control of it to reliant and was upset because reliant didn't do with it what at the farm wanted it to do with it and wants to turn that the spewed into an anti trust klein well it didn't it with respect it didn't give all rights to happen well let let me try to address both of your concerns by talking about the implications of the logical implications i think of your concern if we don't give at the farm standing in this case  farm the creator of the product the person that retains all ip rights the person that retained all the manufacturing rights the only company in the world that is developing further developing the product and and  marketing it and it has a business plan your honor of staying in france and and allowing other people to distribute it has one exclusive distributor what is the conclusion that the conclusion is there is no other  that can bring an antitrust case in this case that is the fact and here is why what you have is you have reliant is the only person that knows of the s t s there are a  consumer that can possibly get access to information about the s d s because they don't know what exist f e farm is the only company on the planet with the ability to bring an antitrust claim and just record found on this on  give you injury in fact giving it the trust file ation now are you the kind of person we're going to allow to bring this claim fully recognizing that no one else might bring the claim i respectfully disagree that the concept of the antitrust laws are there underlying the antitrust law is the concept that we can have a situation where we recognize liability we can recognize you were targeted to stay out of the market and there is no person that can bring that claim no consume isn't there no it isn't had a isn't the idea i mean there is somebody who can bring it reliant can bring it your problem is you're upset that in this case reliant won't bring it but reliant could bring it r what i'm right you're saying reliant in these circumstances is part of the problem but that's a that's a factual circumstance peculiar to your problem with your exclusive distributor not with the antitrust law and i trust dan well i  t i disagree with in the logic of that statement is what it means is that any exclusive licensee can enter into like a reverse payment or and it can enter into any subversive anti competitive illegal agreement with someone else call it confidential and there's no one on the planet that can do anything about oh no that's a consequence of a deal you struck with reliance there is something you can do about it it's called a contract suit you sue reliance you go after the person who you turn all your rights over to i mean isn't the point about antitrust in that we're not going to turn everything into an antitrust lawsuit when there are other legal mechanisms that are more directly applicable to deal with the problems then the howitzer of and i trust liability there is either party could have brought you know reliant into the suit both chose not to buy the fact is that a what you're suggesting is that there would be no antitrust capability to deal with a situation where we've shown below that we have a direct agreement by act a monopoly  makes one point five billion dollars in the united states each year and what they've done is they have specifically identified the thirty six largest distributors and developers of the product and they have written down on a piece of paper that they're i submit to you that if you take that if you take the position in this case if your decision is that i manufacture someone someone that is the only the only entity on this planet that manufactures and develops this drug cannot bring an antitrust case it's against the way of other cases i do not know of a single case where where someone that is a barred from participating because it lacked a license that that explained to me how it's a misreading of this court's binding precedent to understand that statement as meaning that you now can't challenge yes yes basically they're just under the bus that's a much better way to set it it's very accurate but i would add to that one one item which is in this particular case  you know you do have a situation where we did not we have a right to contract in any way we want over in france and and yes i had knowledge that we at the farm contracted away its ability to do certain things with this drug and directly with barton fifty house but in that in that setting what you have agreement i'm having a hard time mr boss with you keep saying that there's no there's no redress there's no redress you have contract rights you have a right against reliant if you think that they acted in  covenant of good faith and fair dealing that you potentially i suppose have a right against abbott if you claim that they in some fashion were responsible for soliciting were colluding with thing that breach of your contract the rights you have remedies that isn't really the question the question is are you entitled as someone who's legally not permitted to dissipate in the market as a seller of this drug to say i'm a victim of an epic trust violation the first point is we did in fact bring a tortious interference claim against abbott so even under this logic that claim would stand by sure but absolute right but side and the implications to me are that is a company that is that is targeted by such a large company like apple that makes one point five billion dollars a year and and knows everything about this company because it knows how good its products are it buys them in thirty other companies countries and it specifically tries to target us and it says we're going to keep this player out of the market by choking off its distribution channel that is a classic antitrust client and the person that is the victim of that antitrust violation ought to be able to use the protections of the antitrust laws in the united states that is this most forceful way i can put it and i think it would be a grave mistake to say that someone that in fact have it acknowledges that and terra is its most direct competitor you can look at the record they have  companies none none what they are is there evidence that reliance spoke to a couple of companies on that list yes there is k v kamath someone thought maybe they call is that really your best pitch that there's not enough evidence of causation here yes well i would say standing as well your honor but the district court found a lack of causation there has to be more than  then everybody who was participating in that at some point recognise that what was happening was a severe restriction on how that was going to there was certainly a restriction on what patent rights and who would have the right to negotiate a sub license and avid as the patent holder certainly had the right to place restrictions on some licensing rights why then as we want i if you consume about protecting your wife's pick of the thirty six there are big pharma because as because as the avid witnesses testify when you negotiate with pfizer you can get better and different rights they have different relationships with the pfizer than they would have with a nazi that you know cavanaugh in the real world the way this played out was they ended up talking back and forth with reliant your clients representatives and reliance representatives with your clients representatives telling him no no this and changing moving from say twenty or just thirty six and eight and then when an actual entity came into play there was some effort by abbott to say yeah you know we're going to get we're going to get smaller and smaller here to the point where somebody from reliance as you know there's an i trust implications what you're saying here what now on summary judgment you're saying that no rational juror could that it's beyond the pale right consent to whether those subsequently issued patents could be some licensed that was the context well that may have been what you say the context is but i think you've got a pretty steep hill to say it is absolutely that where it is ok why don't you go to the point that was left by mr bosler at the end of this argument and talk to us about you know trust standing he says it would be unprecedented for this court to say that the manufacturer of a product doesn't have standing to complain about and trust violations what's what's what's wrong with his statement that we should be trust standing to competitors and consumers at the farm is not a competitor their rights are not interchangeable with abbott they're not in this market they purposely chose substance they chose not to file a new drug application here in the united states and go through those steps that was their decision not to participate not to take the risks associated with being the seller of a prescription drug in the united states and it's this court knows there are a lot of potential liabilities that come with that they chose not to step into that market i don't think that's form over substance it's no different i would submit then well we get a share of the profits therefore we are really part we can develop this product we're going to share the profits we have rights outside the united states we're a player what difference the district court decision because the district  at wholesale it's wholesalers would have an argument that we suppress competition in a few no five break market by virtue of this agreement and therefore they were overcharged that is the theory that's brought constantly by wholesalers in pharmaceutical cases where they allege there's an unlawful agreement to restrain trade even meddling what happens in haiti or even before the party has been developed in the market  as a matter of fact reliant was selling it because it was a dead product and as the district court held in this instance at the farm's argument is well someone would have come along we can take discovery of anyone we can identify they can't identify a single company that actually had interest in buying this nor can they show that some company would have done more than us in did you had  itself they put a thousand reps on this and after a year and a half they said our strategy isn't working this is a dead product reliance on witnesses testified that there was no interest from these other far from big pharma and they didn't think big pharma would be interested because the product was only selling thirty to forty million dollars a year well that that's not a big pharma kind of product it's a big pharma kind of product for you guys in thirty some other countries rate the pound that drum pretty hard if abbott thinks this is such a lousy product why did they choose in latin america to put that front and center not their own tricor it must be a pretty good product well first of all reasonable jury look at that and we're say there are some here first of all your honor abbott doesn't have those rights to try cor come from forty eight in france and so abit if they're going to take a license in different market they go to and they want to f bomb because the record shows control if their product was the established brand in those countries and try cor coming along afterwards would have been like reliance doesn't that kind of before and terra in the us market it was the established brand and if you look at the testimony from the reliant people they say we could not overcome try course brand loyalty we try to marketing strategy of lower goes it didn't work it was it dead products well and then they had another four years my assertions when you say they don't have anything to respond we've got evidence in the record that they put it evidence that hey look how great our so also go a look at how we're we're increasing our market share we've got the money to put behind this marketing really key role in this product that's in the that's in the right right you're right yes with a one of them with a one and a half percent mark and say the facts of abbott's behavior were anti competitive because they have to have because your honor i would submit to you they have to come back with more than a scintilla of evidence to say three things one one of these thirty six companies was interested in paying more than eighteen million dollars to buy the rights to that company would have invested more than r c and invested and three they would have done better than us it see it increased sales of and tara from from alliance base but then why it faced but then us in faced generic competition from two other generic companies that came in with a two hundred and a one sixty it you're on they have nothing to support those three assumptions well we've got their argument the brief about why they think your three assumptions approach is wrong with the limited time we've got and like you  district court aired in that case and that as this court make clear in broadcom you need to be a competitor or consumer in that market and broadcom for example was not and isn't sigma pharma sigma pharma was not there are other potential plaintiffs here such as a wholesaler and other people that are in this market reliant itself could challenge this agreement had they interpreted the way at the farm assumes they would have f the farm could have exercise its right of first refusal there are many options that at the farm had in this instance they point out they put a cautious interference claim against abbott in the district court when we moved to when we moved to summary judgment date didn't address that at all not at all who thought that the just what they did think mr cavanagh overstated his hand on that particular point by saying that we didn't identify a single company that showed any interest what a case like where there was uncontested when tested with somebody in the relevant market was interested in the product and that's what i'm trying to get at here what is there on the record this show an interest in the and any other interested entities the restriction so this is the unusual case in the normal case and what i keep trying to do unsuccessfully in terms of rescues the response is that the response was an initial positive response yes we would be interested and then they were blocked by ab conduct reliant never called them so would you have in this case is a very unusual case i believe that it is a perfectly accurate statement to say that there is no other causation case certainly no causation case cited in this court on this case where there has been any evidence of that is contemporaneous of the people who were blocked actually saying they were interested because normally reliant never called them after these it is expressed interest why what nephew just well it's worth actually going through what happened on this particular point on on july in july of two thousand and six at the farm was told that that reliant was going to sell taj and and they said why priest just contacted big companies they'd be interested why would you sell this to a small company that has no ability to distribute this and the response from joad was a crusade he was who was  rafter of the s t s and and the c e o of reliance said i didn't offer it to the big companies because i'm restricted and prohibited from doing so by a by a distribution center in the united states it was put in this position purpose is there any evidence in the record at all that at the farm did something to slow down or stop this once they knew it they approved it is there any on the record that was before those meetings there there were comments back and forth with reliant about them considering trying to put financing together to do this yes there is but they did and they did not and your hon opportunity and you you accepted this and that this wasn't something that everybody could see it was going to be a disaster and your your client's claim is everybody knew who was it that this was going to be a disaster it was set up to be a disaster and yet you agreed that the sale and i guess that's what the question right now was target well in terms of specifically the question i'm trying to be responsive i think there are a few strains  of thought in that but in terms of consent i guess you know why is that that the farm consented to to the say why would they have done that is that the question the question is because they had to mitigate their damages i guarantee that if we were in this exact situation and we had tried to object to the sale and refused to let  in a position to buy by that mr cavanaugh would be standing up there and saying you had a ready willing and able buyer you should have accepted that you shouldn't stand in the way and you should have mitigated your damages the question is well what i'm saying is that at the farms see you sitting in france before he even knew of the restrictions and the restricted and it's understood that they were going to sell a product and he of what happened the s t s was signed in april of two thousand and six at the farm became aware because well i told them we're going to sell your property the man in there and was that in right around that same time late april early may they can see the farm considers maybe we'll purchase it but we're not in a very good position where we don't have the cash and we don't do we don't distribute and united states so they're considering it and the person of the share in france makes up his list of three three or four companies do you wonder if other large companies who could make something of this would be interested he calls those companies all four of them are interested ok then in july he understands that reliant must be doing what reliance would normally do which is go out and try to find the best butter for this product he in july of two thousand and six they have a meeting what's happening with the product and they're the under the contract under the terms of the developing and license agreement two thousand and one and this is under speed on this record they did not need a few farms consent to go through with this a there was an effective right of first refusal and this guy i said it was it was there was not in effect of right of first refusal so so when he's presented with a buyer in july a willing buyer he has the option do i want to take abbott the huge elephant that and do i want to take on reliant and tell her why you have to breach your contract with abbott or do they accept the deal that's on the table see how it goes and sue for the antitrust