united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court the defendant's insisted on the court accepted a very clearly erroneous and i trust stand standard in assessing the complaint overall and that result is the quite got wrapped up and demanding that we treat are not required in order to assert our n h s claims in addition i will address also that according to gauged in some inappropriate fact finding and acceptance of adverse inference that were suggested by the rather than exclusive dealing but i looked over your complaint the five page complaint and was dealing with the contract i didn't see i'm not sure i may have alleging here is that there was an overall conspiracy to restrain trade part of which was agreements to do certain things and other activities which resulted in the restraint  dealing arrangement between buyers and sellers that's not what we allege here was there are some attempts at dealing only with certain people yes but that's not an exclusive dealing arrangement with the law and even if that were the case even you but just i just want to clarification on what you said what you said is consistent with what i understand from your brief for example in reply brief page four you say the anti competitive agreements here because they are not exclusive dealing arrangements and you actually i tell a size that portion do not implicate those presumed pro competitive benefits so in your view this is not and your complaint has not alleged this case  be an actress violation as an exclusive dealing arrangement is that correct that's correct your honor particularly in the way that is categorized under the law which is between a vertical arrangement between buyers and sellers this is a horizontal conspiracy between competitors and those who have control over the market by having a dominant position with purchasers so to them that said let me please follow up to the extent that we understand certain portion of the district court's opinion to be analyzing your claims under an exclusive dealing arrangement exclusively that isn't relevant to our review and we whether or not the court caught the exclusive dealing portion of the opinion correct is that right now your honor i think it is irrelevant that's right and i think that that should be put aside because in this case what we've  a garden variety if you will agreement to restrain trade and exclude competitors by other competitors so it's not a particle it is not a case and the court unfortunately got off on  repeatedly told the court in the nd answer to many complaints that this was not a vertical agreement there used the word exclusivity happens all the time because you're excluding people in this particular case there are a number of things that i i understand putting aside what the complaint might theoretically support did you ever argue to the district court before that final hearing that that your theory that your legal theory under the an us was refusal to deal as opposed to a an explosive dealing in a range meant we argued repeatedly that it was not exclusive dealing and there were multiple issues here one of which was refused to which we put in the complaint we said that there was refusals to deal but we didn't read it you argue in your brief that you were not doing an exclusive dealing arrangement and that you were only pursuing a refusal to deal cla in the hearing on the rd amended complaint after you were given multiple attempts to amend counsel for your client stood up and said so what this is where in giving the saw over the past couple of months these agreements function as refusals to deal these are refusals to deal this is the very st time these words as far as i can tell were uttered by your party and opposing counsel said that we've gone through four complaints and three amendments that we've never before heard this claim is actually a refusal to deal and then they said but i want to echo the point if you're going inclined to consider plaintiff counsels new refusal to deal argument which hasn't been briefed we would ask for additional briefing here because that is new to us and that was the nature of the hearing and then in the district court opinion the district court said and found you had waived as not raising this issue and he dismissed without prejudice which allowed you the opportunity to amend your complaint for the th time and you could have simply added this allegation why are you wasting our time with this appeal why did you not pursue the district court's expressed invitation to refile rather there's nothing more that we could allege we had alleged every may not need to put labels on it in the complaint itself but once you start making arguments to the court the court doesn't have an obligation to look for legal theories if you are site if you argue a particular legal theory and you pursue that throughout all of the briefing every time you respond to a motion to dismiss then the court has has the right to say i'm not going to accept a brand new theory at the last vertical arrangements own of article arrangements are the things that the court found we lack lacked coersion lack some kind of a binding agreement over time those are critical only in the case of a vertical arrangement this was never played  there is when you have an independent competitor in an oligopoly market like this you competitors that limits the power of the dominant firms if they're excluded and when such an exclusion is consciously brought about by concerted action which we had again that said mr has said repeatedly that it was the defendants that were insisting on this theory and has said that the refusal to deal theory is somehow to your honor its relevance but what the exclusive dealing case law makes clear is that there needs to be some forcing and for closure and that was the point i wanted to make which is that if power analytics  believes that the exclusive dealing case law and b and the refusal to deal case law and its theories are the same then the same elements of requiring coersion or some long term agreements that is difficult to terminate is necessary here i will point out that at the opening brief at page forty four power analytics seems to take that position by arguing that the court should look at exclusive dealing case law forcing here if you look at the merits or if you look at them squad if you look at three m the exclusive dealing case law they all turn on the sort of foreclosure forcing that is necessary and found in those contracts and that was pretty well summarized in the th circuit aerotech decision now why is that necessary because without that type of finding that happens these look like just contracts that are found in the comp in the competitive market they don't have additional anti competitive exclusionary facts and so if we look here for example at the schneider back to judge laurie's point though because this was all framed in motions to dismiss your motion to dismiss the original place in which you characterized the facts there there were a direct terms that this was an excuse de facto exclusive dealing arrangements alleged and there is in fact a claim that section three claim alleged which is a specific statute dealing with exclusive dealing and three you find the same types of all allegations that the agreement is one for sole sourcing and exclusivities and so when you read the allegations as a whole what you see is that these these electric requires some analysis even under the allegations of the relative financial strength of the parties to determine foreclosure here if you look for example in volume two appendix one thousand five hundred and forty three paragraph one  dealing or refusal to deal off your honor i do think these are vertical agreements typically exclusive dealing arises out of vertical agreements in which you have parties that different levels in the economy so if you look at for example business electronic it makes it clear that restraints imposed by agreements between competitors are denominated as horizontal restraint zone those imposed by agreements between firms that different levels of distribution are vertical restraints so i understand that mr react points to certain allegations where they deny that these are vertical agreements but if you look to the remaining allegations the factual allegations it is clear these are vertical if you notice if you look for example at paragraph two all for the press release that specifically says that schneider is purchasing products from each half that is a vertical arrangement between the buyer and seller and then if you look and then if just that i do want to ensure and i'm sure the court does want to look at some of the other allegations quickly and just touch on them that beyond the specific terms the agreements if we look at them  circumstance allegations of circumstantial evidence to show the agreement for example that contemporaneous with the agreements a sigh and schneider and not and to dealings with  analytics i would point out that those allegations are contradicted that if you look at if you look at the actual pleadings at paragraph one hundred and ninety five dollars that schneider was alleged affirmatively alleged to have continued to deal with you tapper three years after the agreement was in place and if you look at paragraph one hundred dollars that paragraph expressly says that all aside it was allowing power analytics to interconnect that even if this case were an exclusive dealing ranchman's article which it is not and i'll get in that minute coercion is not required and the court made an error in adopting and you heard mr spock and gerard repeatedly and require it is not even under an exclusive dealing arrangement ninety percent of them i trust agreements are between willing parties in this case it's willing parties if that were the case that coercion is required then you c is not required even in an exclusive dealing arrangement to state a claim it can be evidence of it but it's not required and i think that's the case even if we look at this which we should not as an exclusive dealing arrangement the key element that they hang their hat on the court relied upon this coercion does not exist it is not a requirement in the pleading because here it was between willing parties wanting to exclude from the mark secondly the fact that there were times purchases of product between the parties does not make it of article arrangement that's not what the agreement was your  competitor which is nice and it had multiple ways to do that one was not a longer participating with them in any commercial way you could say that's rich use of new to say it's exclusively whatever you want to say but is refusing to participate to complain would you refer me to as the clearest places where you believe the district court should have construed this complaint as a refusal to deal complaint when again your honor i think that re there was only one element but there are specific there are very specific paragraphs i'll try to pull them up for you  that one yes and how is that you have to take them i think i'm taking them and in the course your honor through this if it's a number please it starts off with the fact that the knowledge the fact that there  was explicit explosive arrangement they would not permit other competitors to participate so all of these paragraphs that i was giving you were portions of it we don't have a written agreement here that as the court said below you wouldn't put in writing that you're doing something illegal now but have it i guess what i'm what i'm trying what i'm still stuck on is trying to understand how it is the court should have construed your complaint as alleging the cause of dealing cause of action and you said so explicitly and there's no doubt that things have changed and morphed through the process but i'm trying to wrap my hands around your argument that the district court erred in not appreciating that the claim had morphed into clearly a refusal to deal claim and that the district court was in error in continuing to analyze and think about it under the rubric of exclusive dealing so i'm trying to find a way or in your complaint is something that should have keyed the district court into the fact that you had changed paths while you're on our allegations remained the same throughout that there was yes but will you agree that your earlier complain in this case we were bound by that if we could not argue that is there broader agreement i'm not suggesting you're bound by that but but clearly your arguments have evolved over time at least the causes of action that you would like interpreted and so what i'm trying to understand is how did this district court judge miscible in terms of their refusal to deal what in your complaint your rd amended complaint should have made it really clear to him that this is no longer an exclusive dealing concern it's a refusal to deal and so are there any other your time is probably winding down and are there any other particular paragraphs in this complaint that you think i really need to focus on were doing business their allegations start back and one hundred all the way through or the course of dealing that existed was that and i'm talking about the new pick markets but it's also the same in the other markets that o s i was was courting our analytics they were making sure that the software worked with their story and product which was the critical bridge they talked about going and visiting new pick customers together and then