for evergreen the plaintiff appellant today summary judgment in this case should be denied evergreen satisfies the monsanto and mets or she does standards with undisputed material facts and disputed issues of material fact the many threads of substantial evidence to support evergreens claim that the converter defendants who occupy some ninety percent of the relevant market and the a c c engaged in a concerted refusal to deal some new technologies and methods disrupt in the best sense of the word old industries evergreen might have done that but for the market distortion by the defendants just last week i overheard one of my christian say to another as they converted traditional lighting system to l e d s quote green technology has really energize the electric lighting business just like aluminum batteries and plastics and that's the antitrust policy underlying our case whatever green sock to introduce might have energized the polystyrene food service industry which will abbreviate p s f s a mouthful but like cisco the largest distributor in the nation and the largest food management group consumers here a large school districts nationwide did not get to choose defendants decided for them making sure that no one of the converters was going to act competitively competitively to steal a march on any of the others by buying into sustainable recycling contrary to judge stern statement below this is not a question of evergreen seeking to use antitrust to force an environmental solution on the market the district court wrong footed its summary judgment inquiry and its misunderstanding of the law skewed its perspective on the facts the judge asked counsel for evergreen retar and i quote what in the antitrust law makes it anti competitive to choose one alternative even if you do it collectively again assuming that we're dealing now with the rule of reason analysis and no horizontal conspiracy i mean if we sat if we sat as a group of utility owners and debated the virtues of natural gas versus whale oil in the one nine hundred century and suddenly was offered direct current and gave up our efforts to oil which had been my first choice what in the antitrust laws makes that anti competitive i'm not sure where that argument goes close quotes i would suggest that everything in the antitrust law do you judge stern's phrase makes that anti competitive if it's a collective decision and that's what the judge was positing then it's a naked per se illegal refusal to deal and so it is here even if it were to be judged on the quick look or the rule of reason we've satisfied our bird we've shown anti competitive facts is that is the pickle winner testimony critical to you being able to show that there was a collective that testimony can't be the plus factor that gets you over the hump well how could you win assuming that rejection in may that is one element your honor i understand i think there could be different interpretations of it i do think that it is direct evidence but even if it were ambiguous there was a continuing ongoing concerted refused to deal and i think another prominent piece of direct evidence is the very rejection by i think we're in may of two thousand seven announced articulated to the group in june june then the following month of evergreens proposal for the l a unified school district planned which it was invited it was solicited to to the group to to us that is that is direct evidence of a concerted refusal to deal because they then voted and there's record evidence saying that they voted the individual members of the p do with any of us you've got to get the whole group to say yes that's right which i think is a manifestation of an overall posture of the of the defense which is we're all in or we're all out in dealing with you and i think and to the dominance of active and and what's the district worth finding on that episode that you just recount as to why that is not sufficient solicited or was solicited you know there's the whole tickle web issue which we believe falls very squarely in our favor because in this case he did not come parsed to the to the group he was asked to come to the group that is exactly when all force with the second half of the take a decision where is as you may recall they said that if indeed if the assertion is that individual members of the group could not make independent decisions these were group decisions and in the individuals who made up the group could not make independent decisions what's the best evidence of that that you have to put forward best evidence of the fact that they could not make independent decisions i  think the very best is the group decision with respect to los angeles but there is it was the fact that they presented this united front they presented this united front and then what i'm sorry  parent what the district court said in response no well this was this was in response to actually to your question the subsequent conduct by john pack and go with with evergreen in his view negating the notion that there was any conspiracy because they don't with him as to which we say well that is fully consistent with an agreement to limit the terms on which to deal because they did not deal on recycling terms they simply bought the resin but the winds of evidence going out and converging back into the central refusal to deal we have the support of p t our which was a non functioning entity that there is at the very least  pushed it out there to the major school districts in the east coast and the west coast and that hurt evergreen competitively they were also putting in news stories about p r p r c e o testified in the opposition that we weren't doing anything evergreen represented that's what that was its model and it was the only one doing it they did this because they needed to resist the bad ones which were a serious threat to their conventional way of doing business which is to buy a version resident put it in the material and then the stuff gets used for fifteen minutes and it gets sent off to the landfill so they wanted to tell make it seem to the public that they were interested in recycling they did not want to fight but on the on the inevitability of the need for some kind of recycling some kind of alternative and at the same time they've maintained very clearly in their papers and we brought it out in their reply that they did not buy into sustainable recycling so i think there's an inconsistency this is a contradiction there which at a certain point the center simply doesn't hold any water and what happens is that evergreen the only one who posing a sustainable recycling becomes wrote in an opposition to sale recycling that goes back to two thousand and five there's documentary  if ever green had wanted to go if there's not evidence of evergreen there's two different levels of the individual members and then there's the group yes ok if i go to a group and say i'd like all of you collectively to help me build a recycling plant and the group says no all of us together would not like to do that no any trust problem i agree ok if i go to each individual member and say like each of you to help me each one says no i'd rather not do that knowing to trust ok the only problem is if the group says to each number we're not doing it together and we're not doing it separately i would agree that what evidence that from that may two thousand and seven meeting that not only did we have been going to the group of the group saying jointly we're not going to do this but that the group here was a vote so we established that if the vote is just we're not together going to do i understand and so the argument is so i guess my correct that your question is how do we know that implied and that is coercion when any of the i would say that at the very least the evidence of the subsequent the that the absence of any one of them dealing with evergreen unsustainable terms it i suggestive at least as a plus factor if not under monsanto you know recently kenny show a conscious commitment to a common scheme that at least excluding do we get with the plus factors to exclude the possibility of independent consistent with that decision there was no evidence that anyone wanted to to do it what we do know is that subsequently back around two thousand and eight the group began to come around to two evergreens model at least there is no product out there that contains recycled p s resin now but they at least were talking about that but i do not i don't have a smoking gun that says that you know it has documentary testimony evidence that we have agreed and no one of you will do it but the circumstantial evidence i would submit is very strong that there was pressure from active and dart on the smaller companies it was after all riley who worked for when that school district with evergreen he got out did in what was  suspect sort of distinct difference in the bidding one year from the other were packed and came in and muscled its way in and said we're going under bid and there's no way we're going to allow sustainable recent you know he had a recycling to go and you're going to have to wrap up so i think there's a lot of circumstantial evidence and the support of p t our which was not engaged in anything certainly not sustainable recycling to to make it seem as if they were in that just took place minutes ago there was nothing about that may two thousand and seven that determined more restrictive or strain anything that would happen with individual companies consideration  years kind of a gift a price doing some testing all of this and one of the things that you may be expect to see in a conspiracy case where the where the allegation is that you heard a minute ago that the trade association is sort of trolling the individual companies reactions for taking better you'd expect some conversation about you don't have a conversation either between the defendants on their own with any of the defendants and the trade association or even with each of the defendants individually showing any animist or evergreen or any suppose of market disruptive impact of what they were doing there's just no there's no evidence that anybody tried to do that when when at for instance went out and made trades for jet pack when i made trades for that that any of the other players any of the other defendants call them up and say why didn't you  that nobody called dulko or jet pack and said why did you fund these guys but there's a if i understand it the the argument is there is a business model that evergreen had which depended on subsidy essentially from the people they were going to deal with which people in the industry would have potentially an interest in not paying their toll in title not to pay it but they're not entitled to collectively decide no one ok so the fact that you don't people don't with evergreen not on that term isn't probative of whether they were trying to make sure no market we've got created in which somebody could subsidy because once that gets going then particular what's going on in the political universe there you could see other via fuel this market is going to suddenly be dominated by a player that has a business model facts for it would be if i get it no one would deal with them on that term even though they deal with among other terms that's not itself dispositive they talk about picking a winner and are happens to be a competitor that doesn't charge the subsidy so they collectively reject funding evergreen knowing that it has the subsidy so i guess the is at what point do you have enough of those just on summary judgment to say could a jury reasoned that's my only hope to just record have been and it doesn't read like a summary judgment decision particular reason more like my best the best view i over and what i'm suggesting is there is no mystery about why each of these individual the bad acting individual decided not to go with every record is there and it's undisputed it was too expensive yes they wanted your cycling  y looking to the future want to be a green can also because it is an effective way we thought of resisting material bans but not at any price and when you look individually at each of these companies and again the record on this view that they're not talking to one another about this they're not expressing any fear of any market disruptive impact of evergreen they're not suggesting that anything that happened in the trade association controls what they're doing client worked with p r and evaluated their resume and their pricing the same way they did evergreens work for them for a while and then didn't act but i guess the idea would be if you're going to have a recycling entity it's going to be d d r not evergreen and the implication be because it charges the subsidy well why wouldn't that be an autobody get over the end of a piece of that nobody nobody evaluated it that way when they looked at evergreen what they saw was quality problems and a very expensive dollars way over what it never of charge the commissions were higher than it said were standard in the industry and then it was asking for all these extras on top of it some of which you can actually see in the various options of put in front of the  investment hundreds of thousands of dollars at the end of the day there's no dispute that doing business with this company was more expensive than the way these companies were doing business in the past and as long as they're looking at this judge and individually and deciding as prudent business people that this is too much money for a lousy product and they don't want to do that business and they think that in some instances that p r is better and there's record evidence of that too and cheaper they can do that as long as they're not agreeing with one another i don't think there's any controversy about that supporting recycling i mean mr often talks about sustainable the question is bad sustainable for yes of course from the standpoint of the recycler i would love to get a lot more than market for my resume i would love to get environmental fees for from the schools i would love to yet individual it looked at another entity and decided that i can be a precise without all those strings attached then why wouldn't you do that so and that's not to say all i'm saying and that is that that the whole inference that this was such a case with the trade association or with each other but just evaluating this is a business deal on its own deciding that it didn't make sense and particularly in a situation where you start the planning stage is told that this is an innovative product that's going to come to market and save consumers money it's not going to save money it's not disputed that it's going to cost them more fact there's evidence in the record that ever going to push wal mart said you know if you're serious about sustainable recycling you need to mark up these products five or ten percent pay me that crane so we can develop this market wants a major part recycle products should be cheaper that's what our customers that if you look at the evidence and it's also undisputed each of our companies the same thing there's no market out there at least right now for the customers who are going to come forth and because this product is so called green because it's got five percent of his resonance are going to pay a premium for it that's going to cover the commissions and the loans and the invest and the parking fees and the license fees and the above market resin prices of this company want to chip us on that's that's really our view of the mean a lot of time that's that's really our view of these fears the case there are other grounds that judge starts didn't reach that i think pretty well laid out in the brief but i would say one maybe stands out more than the others to me for the clarity of it and how how much it really goes against first second third and that is this rule of reason it's clear under u s health care in the stop and shop case this this court that group boycott context you don't get her say treatment unless what you're doing is targeting a editor at the same level so you have to have a case in which the group was trying some segment of the group trying to harm another editor their love of the market by cutting off its access to presence of by customers of distribution you don't have that here it's not structured in the way that it's typical for her s have to least get into rule of reason market analysis type evidence they decided not to all or nothing gamble on her statement and it's not like you i want to be very clear for all the reasons attorney foul just argued local completely agrees with the defendants that summary judgment should be affirmed on the grounds that there is no evidence of any conspiracy which of which is fair and i want to pick up from the point if you want to work with sue if there's a question raised by pointing to a phrase and if one were to say well then if i'm going to let evergreen try to crew of the conspiracy to legends why shouldn't they go back members were really doing was agreeing among themselves to not do business with or to destroy everybody's ability to do business i think in a sham p d are promoting that instead of drying up its customer base at the record evidence the undisputed evidence is talk about you not participate in that conspiracy and why is why do i say that and the the answer to the question as to what evidence that the group was telling the individual members two thousand seven proposal that came out in june two thousand and seven with a group to say no to evergreen we're not going to pay you all that money help you build your california facility we're going to go a different direction and then all that the direction that it went into in terms of lobbying and promote recycling recycling it's undisputed in the record that the resident doco purchased over time paying in advance they don't that the subsidy hundred fifty thousand dollars total was paid as a subsidy in advance before any he'd already given the equipment to get georgia up and running so don't go is subsidizing evergreens georgia facility it's taking that resume and what was capable of being used because  records also clear much of it was of such terrible quality it couldn't be used at all but to the extent it was being used it wasn't being used to make products that weren't recycled it just went into a line of products that doctor was already making with recycled content was undisputed in the record so it is recycled content products that have been always put out i don't know i had a couple other points to make but i'm out of time so i don't f very quickly taking the questions the order from mr faust in reverse order as for the rule of reasons appeared court trial lawyers an ambiguous supreme court role it was a bunch of trial lawyers perfectly situated but as among the casino operators horizontal which is exactly one off worth of their situation as i said before if they found that there was the conspiracy to this circuit said  that that is wrong as for don't go and the investment the fact remains that there was no buy in to the co sustainable method because there was  no buy into the commissions which were necessary for the sustainable method is one of the three legs of the model as you know why would you if there was a conspiracy that you're causing why would you have done the deal though with evergreen i mean it certainly would have been better for the conspiracy not to do the deal and have evergreen just go under quicker then to do a deal that kept them going already talking about being quite upset about their having engaged in group conduct and what we have said in our papers is that it is certainly possible that they did this in order to to buy peace with him all over evergreen clamoring for this as far as the quality is concerned we are going to get a couple of figures hundred million trey's three million dollars revenue eight hundred thousand pounds of resin from two thousand and three to two thousand and eight are always going to be some issues about quality if you want to use it as a product tried it out there might work but it doesn't stack up with the evidence this is a summary judgment this is not trial as far as p are that they quit working with p r p speed or wasn't there n p r s product was up to eight dollars eight dollars versus evergreens great opportunities here according to patterson and riley before hand why would they be saying