court counsel and james walsh on behalf of your county title company of nevada the matter of the question i attitude can be summed up by some of the district courts questioning during oral argument the question was asked why isn't this basically the mousetrap issue if you have a better mousetrap that you have developed why can't you do with that as you please and charge what you please for it and that was the level of analysis or the analysis that was applied to this case and i think that is superficial and inappropriate street inner county title company of nevada is moving into the washer county market there are at that point in time basically five right but you don't have the money to go into the business that's too bad issue is you have this technology if you will or this methodology of analyzing the data that's available in the market that is essentially the think and the consortium as fact go call that controls access to this thing the in the case where microsoft has access and controls the code to allow people to write programs that would function under under specific form yes and that is a competitive advantage to having that raw data in that specific form be more efficient for you yes exactly and everybody else has the data in that form at a price substantially less then we would have to pay for that that the existing members of the consortium paid approximately three thousand dollars or less a month to obtain that data contractually from data trace data trays spe is the entity that developed the portion of that data that where we're interested here at seventy nine forward was and called the back plan they lost my train of thought there the data trace develops this particular data themselves under contract to the other members of the consortium and we wanted to basically to buy into that and there's a contraction of for me to allow you to do that the other members at the time we come along s well first they say yeah you can you can buy em our contracts as they traces are agent two for negotiating that and doing that under this contractual form and they traced is a partially owned subsidiary of the parent and they are as i say kind of the the big dog in the in the title industry they have just method of processing that data that saves you considerable amount of time and other than us we would have to have a million dollars put in to play in this market and the observation was made that well you know we could play and we're playing our market share was increasing well that's that's just and they want to characterize it well what's the problem business is booming and that's just that's just sp the company was at that time working and attempting to you know to develop their sales are new into the market i mean you know they open the doors and no business and you get your sales force out you get you cou  kind of getting back to the how how the the district court treated this matter they come to they start out with this this this mousetrap concept which i think is inapplicable we are not talking about just a thing that's been off the shelf product or process that you can get anyplace that the district court in its order and i think you're only asli pharmacist that while there's other title companies that make the statement that there's other title companies in the market that are not using this this backlash and i don't quite frankly know where that came from  there are no other title companies in washington county that are that are conducting business not using the seventy nine forward back point the only successful operations have that point and it's an issue of under who controls access to this plant and it's and it's the the consortium and data trace contractual and they have the ability to set the amount the district court found trade secret proceedings that basically this is number one you need to have the title plan to be conducted in this market and the they try to justify after the fact that this one million dollars is  figure yes but that's not the buying in figure in other markets the cost of replacement or cost of creation is not the same as what it would reasonably cost you to buy ins who have access and use  the whole cost of that plant for somebody to participate in the use of that plant it's not like you're buying now you know if your county came in you would have six title companies competing in that plant in that market using one computation and you break it down on a permanent basis which is how the analysts say it was somewhere around two to three thousand dollars a month that the individual participants had paid in and if you look at what they finally say they offered you in your county in our county would have had to face something in excess of eight thousand dollars a month to buy into the same thing they paid three thousand or less to obtain plus they they got to make these payments over time over a period of roughly twenty years and those payments have had very significantly some sometimes that it was or could dispute as to why they were slowest fourteen hundred dollars a month and so your complaint seems to this function that has been created that everybody else hands that allows them to compete at a certain level a certain cost and you have a function that says you know you have to let other people in and to play on the same field but and that's not a function of the district court summary judgment level one other side is you have by statute in nevada or six going to a point two three zero which is under the insurance and for title points title plant operators have to get a license in the state of nevada and one of the things they have to show to the insurance commissioner  under what circumstances you will admit new members to this title plant and you have to demonstrate to the insurance commissioner that this admission criteria is is not anti competitive so this is a state case you have to bring  procedure for buying in both statutory and cut and contractually under the under the data trace contrast but under the statutory scheme one of the things you would have to demonstrate has as that the entrance requirements are not anti competitive and i think that without using the back when you made that record the very things that right now well how do they get the license the representations that were made is that search you could be done using the grant or grantee index business and that comes back at six million dollars plus may dislike of this representation at just taking carving that out and saying you know you told me this and and here's here's the way  know i don't think you can just carve out that little bit of the discussion and from the concept of who gets to participate in the the the use of the day that they did this as a whole based on and access to the county records you can do that and i assume the state required a minimum level of competence to perform the duties before they would give more instance get any represented on the basis of the county records you could do that microsoft you know argue that you can go write programs that compete with windows whether or not you're going to survive in that industry is a wholly separate industry issue and that's why we're here he always believed that he would be have evidence in the record regarding pricing and washer county no evidence whether the prices for title insurance washoe county is higher than the neighboring counties lower than the neighboring counties no evidence whatsoever and  plants affect that competitive balance in washoe county any kind of harm to competition as a result of these title companies getting together pooling their resources investing some three point eight million dollars over span of years to geographic title plant offshore as intercounty title company explored doing they knew the price for building it all sure they it's an undisputed fact that they explored building their own joint venture  with two or three with with two other title companies in building their own geographic title plant that's one option that's one way to do title search is another option is to use the grant to work grants the records that are available grants he searches and washoe county when they lost access to the geographic title plant in may two thousand and two if that you graph a title plant is indeed an essential facility one would have expected their business to plummet their ability to service their customers to disappear that is not what happened what the experience was after may of two thousand and two their business increased it increased fifty to sixty percent through the end of discovery which was another iraq and the irony here they are a member of the title plan from the period of two thousand forward and that's exactly and the that the type of title plant that they represented to the state that they would happen they were using there is no issues before you can get there one is whether this is an essential facility and as we've argued it is not they could they could have chosen to price it whatever they wanted to price it as trinket said there is no duty for competitors  to share their to share their their their their advantages with their competitors unless there's an exception to that there's no duty to to to to to deal unless there's an exception and an exception would be in the case of terminal itle doesn't really overcome because they have proven that they can they can compete without access to this particular title plant then with regard the second step is once they get west if they had established that the only way to compete  county was by having access to this plant then a question would have been is whether this price was reasonable and the evidence i believe and i think judge taken concluded it certainly didn't establish that this price was which is where a lot of these things are happening it would cost approximately a million dollars so if somebody wants to wants to create it with a million dollars and therefore they they charge a million dollars as opposed to the six million dollars or three point eight million dollars i don't know counsel seem to argue that it was the custom and practice in the industry not to charge that kind of or basin and you mention safety in th run by data trace first american title company ironically wanted to answer carson city county and they approached carson city county says we want to buy into your title plant data trace had exactly the same problem  exactly the same kind of confusing contract language which for carson city county a very small county would have would have a price of planet six hundred thousand dollars very very expensive for that county data trace  price why can't we pay that and they eventually decided on one hundred seventy five thousand dollars so in fact when when first american title company i knew that it was part of the group deciding how to price the washoe county plant they had already agreed to pay the offshore bill price actually a premium on the offshore bill prize in the neighboring county and that's an undisputed fact so you know so we believe that that this is not recently priced we believe this is not an essential facility and moreover we believe that there is absolutely no evidence not a shred of evidence in the record after full discovery that there was any impact or injury to competition in washoe county the only the only injury to competition that title company points to his injury to itself that somehow for a period from beginning two thousand to the middle of two thousand and two that they're the processing costs were one hundred thirty thousand dollars more than they would have otherwise then it's a little confusing because they had access to the full geographic title plan for the vast majority of that time but nevertheless their focus is on the injury the intercounty has to come forward with evidence of an injury to competition in general and which which generally requires evidence of an increase in the price that would otherwise have been paid if there was a competitive marketplace competitor who decided that it wanted to pay four hundred thousand dollars for something that that the group wanted to charge a million dollars he didn't want it shows not to pay that it chose not to build its own geographic title plant it same business that i'm aware of in reference to founders they have no operation at that inclined office at this time so we're not in competition there no geographic market we're not in any competition in the step division or commercial industrial area arena that i'm aware of so with regard to one of the the at the least the evidence is to the contrary that there is even a market definition that would even allow a determination  and based on a quote you know if you just go the way it's not you know this is ridiculous and i'm not going to pay that money to play in this market when i can go spend that less money someplace else and get a new bigger market and that is a common competitive injury and you have weekend thank you all very much