requesting that the court reverse a district court decision dismissing our complaint under rule twelve b six motion for two reasons we maintain that the district court improperly made factually findings that the rule stage in finding that crystal clear is not an exclusive provider of telecommunications to the neighborhoods at issue in this litigation and secondly that the district were improperly dismissed plaintiffs antitrust tying claims under rule twenty six they obviously don't understand this case to unlock this case it's important to understand how we got here and it's very clear i hope from the briefing from the complaint that this is arrangement between crystal clear and the homeowners association here is is the result of a self dealing transaction the developer of these neighborhoods created its own telecommunications company and while the developer maintain control of the homeowners association entered into the communications services agreements that are now at issue before this court so it's essentially the same players on both sides of this transaction a the communication service agreements have clear competitive terms including what we often refer to as the mandatory take meaning that homeowners in these neighborhoods have to buy service from crystal that allow it to lay the telecommunications infrastructure necessary to provide telling patients services within these neighborhoods and the third key competitive term is the what i'll call the exclusive agency term meaning that if anybody else have any other if comcast or eighteen tyranny of the big players modern players in the telecommunications market want to enter into these neighborhoods and provide service to the homeowners in these neighborhoods they have to talk crystal clear possibly pay them a fee and come into the neighborhoods and whatever terms crystal clear deems necessary impr there's obviously other portions of the communication services agreement that we believe have anti competitive effects but those are the sort of three key ones that this makes crystal clear the de facto exclusive provider telecommunications services in these neighborhoods and this clearly violates the f c c s two thousand and seven exclusivity order which expressly excludes any provision in a contract that grants the exclusive right to provide or any communications company can get exclusive range meant by giving passive reference to other potential providers that can provide service in these communication services agreements but then burdening with such anti competitive terms that would make it economically unfeasible for other providers to come in and offer a service and that's exactly what happened here the district it looks to the communication services agreements looks at those terms that passing in tacit reference to potential other providers potentially providing access and essentially says that because the agreements say that other providers could potentially provide services that we can essentially a fact is contrary to that term in the communications services freeman this isn't a dispute really  factual dispute we readily acknowledge that the communication services agreement give this tacit reference to other potential providers but the key here is that the practical implication of the communications services dream is that they are the exclusive provider and that i think is something that we should be permitted to prove through discovery as opposed to the district court just accepting the terms of communication services agreement is true in dismissing us at the rule twelve sixteen this court really needs no further than the fourth circuit decision in the lansdowne case to see the again implicitly provided the exclusive right for these communication services to provide a communication service providers to provide service within the neighborhood and the fourth circuit would be the district court in that case that it didn't have to take the case to the jury that there is no genuine issue of material fact that agreements of this kind violate the two thousand and seven exclusivity order so i struggle t the fourth circuit in that case if you read it hangs a lot on the idea of the the problem being the exclusive easements that sort of provide exclusive access to the communications infrastructure while we have that here we dismissed as without prejudice and again this case is a little bit different from the michigan monuments case which the district court relies upon in michigan monuments the plaintiffs in a case were trying to collapsing the product market in the geographic market into a single analysis and the panel in that case was was uncomfortable that's not what we're trying to do here especially in our second a minute complaint which i think makes this clear where we try to say that the market for lots and centrally planned communities in this town is the market which i think takes us out of the michigan monument problem that may or may not have existed with our first complaint and then we can i think should be entitled to be able to prove through discovery that that's an adequate geographic and product market for purposes of maintaining a sherman antitrust thing what is the population of the town pretty small good morning i'm alex farden i'm speaking on behalf of the defendants other than the homeowners associations ms moore will speak on their behalf during part of our fifteen minutes this f c c exclusivity order is very specific in what it bars it bars what are called building exclusivity clauses these are clauses that give one provider the right to provide services while prohibiting any other provider i'm quoting now here from the f prohibiting any other provider from any access whatsoever to the premises of an empty building or a real estate development now these communication services agreements that are at issue in this case in the tollgate and bridge more developments do not contain building exclusively causes on the contrary they express lee specifically mandate that the homeowners in each of these subdivisions will be able to obtain the same television and internet services from any provider that's willing to provide them in the agreements don't stop there they also provide that other providers other than crystal clear itself will have access to the neighborhoods provide those services and in fact will have access to and use the same easement and fiber optic optic infrastructure that crystal clear uses itself to provide these services and we know this from just looking at the agreement which is what the district court did and section three point five of each of these communication agreements it says that the homeowner has the option in his or her sole discretion to obtain services from any and all alternate providers and it goes on to say that any tenant or owner within these neighborhoods won't be denied access from services from any such provider and that they can't be forced to pay any more for those services than that alternate provider generally charges for the services you turn the page in agreement you get to article for an entire article that's titled alternate provider access and that's the provision of these agreements where in the alternate providers coming to the neighborhoods get the right if they so choose to have access to the easement and the same fiber optic network that crystal clear paid for installed and now maintains so that's what these agreements contain and they don't contain building exclusionary clauses quite the opposite that the agreements require of these alternate providers to work with their negotiate with crystal clear pay crystal clear some sort of a fee for seeking to either way optics or infrastructure or otherwise provide services and the only instance in which they might have to pay a fee to crystal clear is if they themselves with my access to the easement and  infrastructure that crystal clear has in the neighborhoods which is going to be true in any kind of situation like this we own the infrastructure we paid for it but what i think is really important here if you want to look at what this agreement actually provides and it's in this article for if crystal clear in the alternate provider can agree on what reasonable compensation is for use of that infrastructure then the provider the ultimate provider still gets to use it while that disputes pending and there's an expedited arbitration process described in the agreement by which an arbitrator then decides what that reasonable compensation is so they have the right to use it to use the infrastructure what what all does that encom includes the in article four you'll see the easement itself and then a fiber optic network that crystal clear installed that runs into this neighborhood and then runs the fiber optics to every single house within the neighborhoods that's the infrastructure them referring to the alternate provider runs the stuff into the home just exactly the same way crystalclear would except that it's alternate providers video service whatever it is  ut directv i think is the one that crystal clear is contract yes if the ultimate provider is a provides programming over wire as opposed to satellite and they want to use the crystal clear fiber optic network to do that then they have the right to do so as long as they provide reasonable compensation for the use of that network what is the impact on it's the fact that the homeowners effort order on saying that it is in general has pros and cons but they say it is a permissible arrangement and it is for actually fairly common and it's not any different from where a homeowner's association where you're required to pay your homeowners a satiation a monthly fee for use of the clubhouse and pool in the planned community whether you use them or not but with the consumers if they decided they wanted to use this alternate provider would they have to pay an additional fee to the alternate provider and still keep on paying the fee that's going to crystal yes whatever happens every homeowner has to pay the same fee for the basic level of services provided by crystal clear it would mean that nobody would contract with an alternate provider than if they're going to have double because if they want some kind of service that an alternate provider provides super high speed internet some unique  programming set then then they might but again your honor that the f c c there is an f c c order that i cite in my brief that says that this very type of boat billing arrangement where you have to pay for the services whether you use them or not whether you have services from somebody else or not is permitted but i think my recollection of the briefs was that your opponent is disagreeing that this is in fact bulk billing i understand that they well i don't  a question that we would need to resolve i think they're saying it's both bulk billing and exclusionary and i'm saying is the former not the latter and in fact when your honour's look at the four circuit case in lansdowne that they rely on there is a fundamental dispositive difference between that case in this case and that is in that case the documents did state and i'm from i'm quoting from the documents at issue in that case and no other person may provide such services to the property if you look on page one ninety four page one ninety one page one hundred six of that lansdowne the situation and you'll see that the reason the court ruled the way it did in that case is because the agreement did violate the exclusivity order because it contained a clause that said no other provider may come into this  development and provide the same services for me if i didn't lansdown the documents there also prevent anybody from amending the agreements in lansdowne so that cou change the whole set up i don't i think that's an argument one of the defendants made about the possibility of an amendment and the court said that wasn't enough but i don't know your honor what i do know is that those agreements contain the very type of clauses that the f c c is exclusivity or said were barred and these agreements not only don't contain those clauses but contained provisions specific provisions to the contrary the unlawful tying claim your honor this is a claim in which the plaintiffs do this they say that there are two planned communities in this one tiny town thompson station near nashville population two thousand one hundred ninety four and that constitutes the relevant geographic market for residential lots which not incidentally then creates monopoly power in the developer of those two planned communities because that developer obviously is by definition the only seller the only original seller of lots within the community and having done that the plaintiffs in declare that the developer use that power in violation of the sherman act to impose this bulk buying arrangement on on buyers of lots in the community and the district court correctly held that you cannot use that kind of circular reasoning where you do not even acknowledge anything that's going on in the world outside the confines of these two small planned communities in this tiny town and state a claimant or federal antitrust law the court specifically held that the plane gives had not allege that requiring buyers of lots within just these two communities to participate in this boat billing arrangement was affecting the market for telecommunications services outside the confines of the community substantially or let alone at all and as you know from from my brief i think that court should have actually also ruled as it did in dismissing the first minute complain that the plaintiffs had even failed to alleg plausible geographic market for residential lots in the first place because under this court's decision in michigan minus and similar decisions of other circuits would be any trust plaintiff cannot create or manufacture monopoly power by defining the market so that the market has by definition just one seller so if you have a cement area like you did in michigan monuments where you have a hospital like you did in the jefferson parish case the supreme court case or you have a building or you have a subdivision these are not self contained markets for any trust purposes that lee not unless you have really unusual circumstances which are not even alleged here and then leave those circumstances are circumstances that would demonstrate that there is no practical alternative source of substitute products anywhere within a reasonable geographic ring but the ultimate point is whether you focus on the tying product market like i just did or the tied product market like the district court in it at doing you get to the same result for basically the same reason which is that you cannot take two plain communities in a tiny town outside of nashville tennessee and come up with a sermon that violation by looking only what has happened in those two little tiny towns and in fact the owners and smith take like a whole big city like cincinnati with that large in a geographic area depending on the circumstances yes it would what you would have to do is to make allegations possible allegations that that that that that is the reasonable geographic area in which consumers could seek alternative sources of whatever product their cure dealing with  saying example they could have alleged here planned communities or residential watts within a fifty mile radius of of nashville or even planned communities in small towns within a fifty mile radius of national but what in fact is going on is that they trying to define the market by the seller so that they automatically generate market or monopoly power and then can come up with a sherman act violation by only looking at what happens in the two plan communities themselves  and not assuming your honor that if if the plaintiffs were correct in this case and their any trust claim then then any commonly funded immunity or service that a developer imposes on the homeowners of subdivision for example the fee that so many people have to pay to the association for the use of the clubhouse and pool whether they use it or not that that is a violation of the sherman act that it's name trust violation when in fact those types of commonly funded services and a are commonplace and the only fact that makes this particular bulk billing arrangement any different from any of those other situations is that according the plaintiff the provider of the television and internet services here was an affiliate of the developer which according the plaintiff makes this an unconscionable and unfair self dealing arrangement because the district court pointed out these concepts unconscionable feeling these are state court concepts that in the absence of federal claim need to be tested in state court and for that reason we believe that this court should affirm tha  under the tuli standard the delaware standard adopted by the tennessee supreme court in keller the questions are two one who sever the harm and second who would receive the benefit of any recovery or any other remedy with respect to the first question who suffered the harm we went to the nature of the wrong as this court held in mccarthy claims for actions contrary to the best interests of the corporation and in violation of the purposes for which the corporation was formed and generally brought us to rivet actions here we've heard multiple times the appellant's referred to these a self dealing claims that the were controlled by the developers and edited to sell feeling transactions by entering into these communication services agreements at the very end and giving the appellant's allegations in the best possible light these are at these are injuries that belong to both the still a derivative injury not a direct injury and that's from the tuli case and i believe it's also stated in the color case and under the second prong of the standard who would receive the benefit of any recovery or other remedy here the direct claims would have required the plaintiffs the alleged right place would require the plaintiffs to a separate some individual ised not suffered by all of the property owners and hear the alleged action is alleged class action where everyone suffers the same injury and everyone would receive the same benefit namely the ability to not pay the assessment to crystal and for these reasons and for those articulated by our co appellee as we request that the court affirm the judgment the district court are there any cases that have held that this type of thing is only a derivative and not a direct injury be some sort of privity of contract or injury to the shareholders or members voting interests for example some sort of violation of the bylaws there are a couple of cases one f the wisconsin court of appeals the lake arrowhead association where the court of appeals found that some property owners had alleged direct claims because the they allege the bylaws are being applied in the wrong way in making that communication services agreements at issue here don't have that exclusive eighty language that was admittedly important in the lansdowne case i actually factually disagree the each of in the current in the current c s a so i don't think that you can differentiate lance from this case by simply saying well lansdown had the express claim of exclusion in this case doesn't this case has express d exclusive right to serve that was at issue in lansdowne it just has this additional tacit acknowledgement that crystal clear on its terms and if you pay us a fee another provider can come in the practical implication of that and again i would encourage you to read the current company says the asians letter that i quoted earlier it's in the record other providers are going to come in and serve these neighborhoods on the terms that are laid out in the communication services agreement so allowing the c s a to stand here again would functionally gut the exclusivity order by just providing the blueprint for how you get an exclusive arrangement without violating the two thousand and seven exclusivity or the purpose of the two thousand and seven exclusivity order is to encourage competition in between providers with in the telecommunications market and specifically the residential market the c s a is here are very clearly anti competitive contrary to the letter in the spirit of the two thousand and seven  and we think that the district court at the outset without letting us prove the exclusive nature of this by just dismissing us right out of the gate is not proper in the world of the six this is a factual dispute that we should be entitled to take discovery on and prove that now if it comes back at the rule fifty six stage that i'm wrong and it's not an exclusive arrangement then they may be entitled to summary judgment i think the facts are going to shake out the lines and i think the facts if they're i get them in discovery are go show in fact the providers are going to come in these neighborhoods with these communications services these employees in there for twenty five and fifty year t