many of the cases referred to in the briefs i would note though that what makes this case different than the pleading cases referred to is the fact that as part of our pleading in that first minute complaint we make specific reference to evidence that was a deuced in discovery in an earlier case against one of our master brokers which made the alec company that evidence that deposition testimony which is expressively pleaded in the first minute complaint makes it quite clear that monster is engaging in anti competitive activity in dealing in its arrangements with the various brokers and sublevel brokers in ours that you were referring to them pressuring or talking people out of dealing with your client exactly exactly we we plead that but does any of that previous pleading have anything to do with market share loss of sales things of that sort yes it does because as anybody miracle way other than just saying monster is a big company with a big well if you're are if you're asking  a complaint attribute a specific percentage of the market to monster no it does not i'm not sure we know you lost any particular amount of sales and well what your sales were before and after we do plead that as a result of being of losing four different brokers we were reduced to doing nothing more than having our own personnel tried service the accounts that we had already been given these product codes for that makes it virtually impossible for a small manufacturers such as hip hop to the answer is you don't give any new miracles to know that not it is the complaint is what it is i mean you know we please if you do say that you did continue to make some sales that was not that you were driven out of the market you say you had to operate without brokers and so forth in the first american plane yes that's what we've pleaded at since that time we  are out of the market we haven't driven out that's not a ploy understand that understand that but what the argument is for purposes of this pleading is that because we were reduced to nothing more than having our people try to service these various accounts we could not increase our market share whatsoever this just basically backs into the the barriers to market penetration it may not be one hundred percent clear from the first minute complaint the way this military distribution systems there are the commissaries two hundred fifty seven commissaries and over three thousand of these mobile platforms that are administered through this exchange program  you know they sell these things out on aircraft carriers under a program called ships afloat under these exchanges without master brokers marketing the products to in the exchanges and then later having sublevel brokers assist in the inventory the on site sales the merchandising display whatnot it is virtually impossible to increase sales you may as we did get product authorization codes from decca yes you can sell your energy drink here there everywhere but unless you've got sublevel brokers helping you to market the things to the individual commissaries and to the individual exchange platforms you're not going to get anywhere and what we found in the earlier action with mid valley is that monster is affirmatively pressuring affirmative exerting its market control over sublevel brokers and then ultimately the master broker how many of these broker firms are out there a very limited number we don't believe the exact number it is a  i mean what if there are twenty and you've had run ins you said with four well we also plead that after the last of the four of those web go bailed on us without any explanation whatsoever we were unable to find any other brokers to service us and that's why we were reduced as i said to having our own personnel try to service the existing accounts you plead that your inability to find any others was as a result of actions by monster beginning paragraph one fifty forty five monster paragraph forty nine once new competitors get on monsters radar they effectively preclude them from from increasing market share by leaning on the brokers the master brokers and the sublevel brokers paragraph if you want a fifty four monster enters into agreements for the purpose of excluding competitors from their money from the market share you know monopolize your inability to increase market share and i guess increase competition i don't know and i i had not read of a word like increase in my ms and i think paragraph fifty seven probably comes the closest what you're on is asking about how we could not find another broker so we had to go about servicing these counts ourselves there's no there's nothing new numerical or quantitative or even directional except for the several months you do say was unable to sell any product for several months but then you go on to say you experienced lost profits as a result of their interference but you do say that you have continued in the complaint and in the brief you had continued to sell at least up to some point but usually in this kind of an injury to competition you do say something about prices have gone up or monster has x t x percent which is now going up as a result that is clearly injury to you or you've played injury to you but where is the injury to competition well as cases like less choppy racing of the others indicate an injury to one competitor in this case hip hop can be with injury competition if the market is very small discreet and there are there are barriers to entry and i think that's exactly what we hear but there are other players besides the defendant right that have somehow managed like your client did survive and the district court noted that district court said if if rockstar energy and red bull down in asia if they're able to compete then that means  there is an ability for other businesses to compete but i think that misses the point because that's just because in a battle of titans the two or three major major players in the market just because they can survive doesn't mean that you haven't told us anything about the relevant market shares of any of the players so i don't you're you're asking us to assume way way too much it seems to me is mustered the largest the largest competitor in the mark we believe  i mean how how are we supposed to how are we supposed to know this council well you wouldn't know it any more then an individual small manufacturer like hip hop would know what at the outset of a case like this it is i and it clearly is not pleaded with specific percentages i said earlier i mean there's no getting around what is or is not lens that doesn't mean if you had sued red bull and monster and  rockstar you know you might you might have a you might have a claim here that you had a domination the market by three by three huge players and might not have to very cowed each one but it it is it is  a little actual allegations there are in the complaint as to market percentages yes i guess i would suggest in that vein if that is the only stumbling block here  we can go back in a minute i mean we could do some market research i suppose but wouldn't but then they didn't the judge sort of tell you that first time around yeah you had all gone up to fix this now what what the district court said is that based on this rick market power the cases that the district court relied on whether they be the pleading cases or the summary judgment cases also all say the plaintiff could have worked around whatever allegedly anti competitive activity the defendants were accused of they could have been selling other products they didn't define the market properly i don't think the definition of the relevant military market is any longer it is pretty well the fine in the first a minute complaint that was not an issue that the district court latched onto in dismissing that first woman complying with the district courts that is as for market power well in you know i i  referred you to rick vick's enterprises in my first order i don't think you've played around it and yet rick makes doesn't really even apply to the situation because rick nick says the there were ways that the pla have worked around the defendants allegedly and you can put it i mean i guess i would i would agree with you that you've defined the relevant market just fine in the first amended complaint but the problem remains seems to me that you haven't in any way given us an indication of how monster exercise market power within that relevant market and that is something that the this report flagged for you you apparently gave us the best shot by gathering that the first amended complaint reflects everything you've got on that front so i guess i  like my colleagues one of why would you get another chance to to fix this problem what we did plead in the first minute complaint is that monster is engaging in its efforts to monopolize the small number of brokers and that creates the barriers to entry for small manufacturers like hip hop obviously we don't attribute a percentage of the market to monster  the red bull or any of the other companies we do say is a major player and we do this do allege that it is trying to monopolize the master brokers in sublevel brokers to squeeze out any entry level small manufacturers if as the middle of representative testified you get on monsters radar so frankly whether monster is a ten percent control ten percent of the market or ninety nine percent of the market they think it's the same in the sense that again isn't the ultimate question is there injury to competition you know if monster has sixty or ninety nine percent that would seem from all anti trust drucker and to make a lot bigger impact on competition that if as you just said it is only ten percent now if they are squeezing you but they barely make a ripple in the market well where is the anti trust injury as we'll adds it does preclude distribution of small manufacturers products to the ultimate military consumers and an increase in prices and in fact of what i have to say that but it clearly doesn't preclude it because at least until past the complaint stage you are still selling we don't know how many some other small people are selling i mean to be brutal if it is sixteen nineteen nineteen and everybody else in the world is two percent that's one effect on competition if it's fifty ten ten and there's thirty percent being taken by all sorts of little guys that's completely different and you're linguistics would make either of those two quite possible is that fair now because the way as i said the way it's alleged in the first minute complaint monster is alleged to be a plead if you're big enough to monopolize all of the relevant broker master and sublevel brokers that control entry into this military  nineteen out of twenty brokers only serve monster or no broker out of the twenty big one serves anybody except monster rockstar and red bull you don't live jenny of that right that's true we do not allege that you don't even a council just for your planning purposes you used your time but i will allow you a minute for i think your honor may please the court i'm joseph palmore here on the half of monster energy company the complaint here suffered from two fundamental flaws it failed to allege a harm to competition and it failed to allege that monster had market power in any relevant market  and the district court's conclusions on both of those are fully sufficient either one to justify or firms first on the harm the competition there are two related the facts in the complaint first hip hop alleges harm only to itself it doesn't name any other energy producer that encountered these difficulties it's complaining about to the extent it talks about other competitors at all that identifies to rockstar  red bull that actually are competing in the market so the only allegations in the complaint are about harm to hip hop and this court's cases and your supreme court has a lot of things it's just sort of surprised me as you know it just it just seems to me that there's a lot of discussion of commercial marketing commercial success and i'm surprised that the wall street journal or somebody a business week somebody has not an article and said gee you know this is a there are three big players in this for failure to properly and possibly alleged market share this court pointed out as a defect of the complaint nowhere gives any market share percentages the complaint here is bereft of that it doesn't name any other you know it doesn't say how many brokers public it's completely bereft of any of the kind of specifics of how this market works that would lead to a plausible claim of harm to competition even if hip hop had alleged harm to other competitors which it didn't it doesn't allege that there was a substantial foreclosure of competition and that's the key if you look at less shockley racing again which is a twelve the six dismissal there the plaintiffs were eight separate competitors and their claim was they were completely barred from the relevant market and this court affirmed dismissal of the complaint in that case but because it said it was disturbingly what was disturbingly absent wasn't any allegations about other players in the market and whether or not and how they were accessing accessing it here to the complaint doesn't have any information about any competitor other than hip hop with the exception again of rock star and red bull that are competing so for all those reasons under less shock y racing and related cases the complaint doesn't plausibly alleging harm to competition but there's a separate de fact which it is that it doesn't plausibly allege that monster has market power and that's a indispensable element of all the antitrust claims here and to establish market power in a case like this and using circumstantial evidence which is i take it what hip hop was trying to do there are a number of required elements one is that the defendant have a dominant share in the market two that there are barriers to entry and three that the existing competitors couldn't ramp up production in order to offset any decline in production and to offset in the super competitive pricing that monster  d to engage in none of that is here on market share a complaint simply alleges that that monster has a significant percentage we have no idea what that means is that ten percent is at twenty percent there and there are no specifics there at all so that's not an adequately play allegation but also in critically there is no allegation here that the existing competitors which the complaint names and identifies and calls them  trenched couldn't ramp up production in order to offset any super competitive pricing that monster tried to engage in in this market and that is again that's fully adequate the absence of that kind of allegation any even a conclusory allegation much less a specific one that the existing competitors couldn't increase production to offset higher prices is fatal to this complaint who made at least under the doctrine that if you have three competitors who are not conspiring who're competing hammer and tongs and you're a fourth outsider in effect for antitrust purposes it's ok to squeeze out that fourth outsider because the other three are adequately preserving competition if there's no harm to competition in the sense of harm to consumer welfare through the charging of super competitive pricing then yes exactly right judge boxes the  three things you said and forgive me i just may not have heard it stated had it down they don't allow a dominant market share then there was a second and then the third was others can't raise production what was the second barriers to entry into their used entry so rebel oil this court's decision in rebel oil is quite instructive on the on this in rebel oil i think the defendant there had a forty four percent market share was pretty pretty significant there were barriers to entry but the court nevertheless nevertheless said there was no and i trust claim because there was no showing that the existing competitors couldn't ramp up production to offset declining output by the defendant here to the same this is the case  yes your honor believe they do and on the leave to amend question as some of this court's questions reflected the district court here looked at the first complaint identified these same two d facts that we've talked about this morning failure to allege harm to competition failure to allege market power cited the relevant cases that point hip hop to do what it needed to do hip hop amended the complaint and didn't make any of these any relevant changes to the complaint to respond to the very specific defects that the district court had identified for it and the district court said this in it in its order and said look i gave you a chance i provided a road map you didn't follow it the situation here is just like in roman one which is a again a twelve b six case of where this court affirmed a dismissal for failure to state a claim for failure to allege harm to competition there li here there have been an initial complaint that was dismissed for failure to properly allege harm to competition there like here the plaintiff had filed an amended complaint that hadn't corrected the defect and there like here the district court dismissed with prejudice and this court said there was no abuse of discretion in reaching that conclusion so i think that there here though the dismissal was proper for those two independent reasons and the court did not abuse of discretion by pricing issue that's really not the issue in this type of case both rick mix and rebel oil focused on pricing and the fact that the the plaintiffs could work around it by increasing production and what not that's not even issued in this case in paragraphs thirty four through forty six and again in paragraph forty seven of the first and then a complaint we expressly plead the the adverse affix of monsters and i competitive activity by for closing from these master and sublevel brokers we simply cannot further that our accounts that we already had we can't penetrate the market further the idea that we're supposed to plead something about working around a pricing arrangement that's really irrelevant non sequitur for purposes of this case we have alleged that monster is a dominant player in this industry that is attempting to monopolize all the brokers we provide specific examples with specific discovery evidence from another case that indicates that monster is in gauging in an anti competitive arrangement with these brokers once small manufacturers get on their radar