injury of the type that the antitrust laws were intended to prevent and the complaint in this case does that in two different ways first college has been injured by common applications and he competitive restraints which exclude competitors  from the market for application processing services and those restraints take the form of several mutually interlocking and reinforcing policies and among them are an equal treatment requirement that prohibits colleges from steering applicants to rival processing service by offering better services or by offering inducements to the student the applicants to scholarships there's also a tying arrangement whereby colleges that wish to avail themselves of the applicant pipeline provided by common applications data service have to also purchase its processing service and their financial penalties in the form of a pricing structure the penalizes colleges for non exclusivity those restraints collectively amount  what this court described in glen holly as coercive activity that prevents victims from making free choices between market alternatives and that is a classic antitrust injury the second form of injury alleged here can be understood by viewing common applications activity as facilitating a collusive monopsonistic cartel among colleges as purchasers of out the application processing services the allegation in the complaint is that the colleges through the complication have colluded to offer an applicant experience and that is inferior to what they would offer if they were freely competing among each other and that disadvantages applicants and it also forces college not to sell to them at below competitive prices and that sort of injury of a supplier to monopsonistic cartel is also a classic antitrust injury now that the district court dismissed the complaint here m b because pages sixteen to seventeen of its opinion in the excerpts of record the district court faulted the complaint for what it characterized as the assumption that applicants do not want to participate in increased application churn that is to say in the district court's view that the benefit to applicants should be measured by the sheer number of applications that they're able to put in and not should not take account of match quality you know the complaint has factual allegations that are exactly contrary to that what the complaint alleges is that applicants are not interested in submitting applications to colleges for the sake of submitting up locations they're interested in identifying and being accepted at a college that they actually want to go to and if they can do that within as few applications as possible that they're better off because they spend less time and money applying and find a better match so that's that's a factual assertion what the market is like and that's a factual assertion that we would need to produce some evidence of to survive summary judgment we would need to prove by province of the evidence at trial but at the pleading stage that there are factual allegations to that effect in the complaint and the district court is required to accept those factual allegations as true and then under equality the question is taking those factual allegations as true a all of the restraints when you have a entity with market power that is using a number of interrelated restraints to suppress competition you have to know you're at the effect of all of them together well maybe you could explain to me why it's say you know you can apply to us through the common app or you can you do it use a different application that would be provided by college you know and they could offer inducements to use that they could say you  requirements prevent them from doing that so they are inhibiting common application excuse me inhibiting college not from competing with the common application by offering  schools and then they are also inhibiting competition within or among the schools for applicants that is to say they make it difficult for a college to say to applicants here we have a superior  application service you know come apply to us because you know it's easier or the fee is lower and so they suppressed what would otherwise be free competition among schools in the or you can say a racer is a different product in the lead there are two ways you can look at that so in this case you're arguing that there are two or multiple products one of them is is just that the the group of colleges getting together and another but you're aware there are plenty of circuit cases that dismiss or from the dismissals on the top b six saying as a matter of law no time right so we have but if you were to get rid of the tying claim we still have the exclusive dealing claim and we still have the claim that what's going on here is collusion among the colleges as purchasers of services from providers like  college not so we would still have a collusion claim that we would still have the exclusive dealing claims so the tying claim is it's a freestanding claim the we have made but it is just one of the claims here counsel would be would be helpful for me if you could explain exclusiveness claim results in antitrust injury because i understand you're not suggesting that by giving the colleges a two dollar discount if they here we are making the claim that we are being excluded from the market and you know so this is not your the the classic no antitrust injury claims are where you have essentially exclusion of just one competitor competition from us and to prevent us from freely competing with us with it so the injury that we are suffering in not being able to or being inhibited in selling to college is not because you know our product is not as good or more expensive but simply because there is this inducement that the dominant player in the market is offering to keep people from dealing with us that injury to a competitor is a classic antitrust injury that is the sort of harm to free competition that the antitrust laws were intended to prevent so that the harm that we suffer from it constitutes antitrust injury probably give you a little more time so you can keep going but i did have a question also back to tieing if we're talking per se tieing claim is it your position that they say we agree with you that a proper per se time claim is alleged do you have to your view of the law a eged separate any trust injury or is per se tying sufficient no we don't need to show and i would think a private plane to always needs to show antitrust injury but we have done that for the reasons sorry the seems to be your position that it is well established an anti trust law quite apart from the impact on cost price that if the availability a better quality product is affected by the antitrust misconduct if you will that is enough a negative impact on quality is enough quite apart from any price of facts raises the prices of goods above competitive levels or diminishes their quality it's and one holly were the court referred to artificially less innovative products and it's consistent with the common sense you know economic understanding that  it really doesn't make sense to look at nominal prices in isolation from quality that a decrease in quality is you know in an economically meaningful sense an increase in price so that's consistent with both economic reality and with the case law but then why doesn't that i think the court would say when you focus on quality you're you're really talking about sort of the subjective experience of participants in the  marketplace you're you're assuming that they want they're not happy with the sort of churning phenomenon you send out a whole lot of applications and hope that one of them works that what they really would like is a process that perhaps more efficient in the facilitates better matching between the applicants in the schools what permits you to make the judgment that that's what participants in the market want rather than what they're now experiencing well that it's not just an assumption on our part of it's alternately it is a factual question and it's susceptible to proof by expert economic analysis and that's you know it's something we've alleged at this stage and to survive s it will not be enough for us to play to assert that that's what consumers want we're going to need you know economic analysis and data from consumers and expert opinions to support the allegation that we've made but at this stage it's an allegation about  based on the absence of an interest or the central question presented for this court is whether of the facts alleged not the conclusions not the labels but the facts alleged in the amended complaint establish and i trust injury not injury to college no injury to competition and a trust injury is a different type of injury than what college net is talking about there are dozens of cases including supreme court cases that say the end of trust laws are focused on competition they are not focused on competitors the health or well being of a particular competitor whether it's the common application or the or college now that is not the focus of the end i trust laws it is whether competition in the market has been injured and so it's important to keep the lens focused on what is happening in the market is competition improved because competition neutral or the competition damage that is what antitrust injury is and that is completely different from injury to any particular entity in the marketplace they and i trust injury doctrine is fundamental and i trust doctrine it is used to filter out cases that do not point to injury to the competitive system in particular it's used to filter out cases brought by competitors who claim they are injured but in fact the competitive system is doing just fine as judge easterbrook said and i trust injury was created to filter out complaints by competitors who may be hurt by productive efficiencies higher ed put and lower prices all of which the and i trust laws are designed to encourage so for this case to go anywhere first there must be facts which if current application your honor i think you have captured the essence of their position as simply and fairly as possible and the answer to that is if you assume all of that is correct nevertheless the and i trust injury doctrine says before you can go anywhere with a competitor complaint regardless of the illegality that is a lead you must first prove that the competitive the all of this is being presented facts alleged in the complaint this isn't a factual battle between sides these are facts that are alleged in the complaint th absence of injury to the competitive system how do we know the competitive system has not suffered injury of the type that any trust laws are intended to prevent we look at what is happening with price in the marketplace what is alleged to be happening what is alleged to be happening to output in the marketplace those are the traditional benchmark objective metrics with which we assess the health of the competitive system when we look at the complaint what do we see alleged as it's of the health of the competitive system we see allegations that prices in the market have been driven down below competitive levels prices that are driven down below competitive levels but above predatory levels competition is what drives prices down not the absence of competition so when you look at the price the read that you get is competition is alive and well in this market college net pleads that it would like to charge more money and it is not getting traction for its higher priced product in the market that is not injury from the absence of competition that is the unwillingness to compete by lowering price in order to please consumers price indicators in this market indicate the presence of robust competition next we look at output is the market being provided with  sufficient product or service and when we look at the elevations in the complaint we see that this what college net describes as churton which is just a labels and the common application describes as educational access is in fact happening more and more and so output as the complaint alleges more and more applicants are applying to more and more colleges and more and more colleges are receiving more and more applicants from students if the competitive system were injured output would not be increasing councilman you just want to quote from paragraph one fifty three of the complaint that's the the time allegation and this is a description of the harm resulting from that tying practice have harmed competition in the relevant markets by limiting college choice no one in the scope of services and price competition available to students applicants and for closing and for closing rival providers from capturing colleges and applicants businesses thereby reducing the net output by leaving one dominant provider offering inferior products and services why is that not a  and appropriate allegation of antitrust injury resulting from the tying phenomenon well your honor because the baseline for and i trust injury is as i've described price and output of facts what is alleged in the complaint if and i trust injury were being created would produce negative price and output effect this complaint alleges positive pro competitive output and price of facts and therefore you there is no injury to the competitive system let me step step back for a moment judge the pez there are case after case after case in which and i trust defendants consummated unlawful mergers in gauged in unlawful timing and gauged in hardcore exclusive dealing arrangements and yet if the mechanism for injury that the plaintiff is claiming is lower prices resulting from the suppose it bad merger or let's take rebel oil a predatory pricing claim and intent to drive a rival from the market by charging below cost pric below production cost price at that price a fact in anti competitive indication that prices are below production cost of eventually they will be going up but allegation here however is quite different which is prices in the market are growing lower and lower and lower and i'm one of the complaints that college  if prices in this market are quote below the competitive levels below competitive levels is not an antitrust problem it is an antitrust trial these are not below production cost these are just prices to consumers that are lower and lower and lower and college net doesn't like that that is not any trust injury success if we broaden the lens in because you're you're saying that they are quite wrong in focusing on quality that the current system diminishes the quality of the application process it results in a usually inefficient market in the sense that parents are encouraged to send out on behalf of their kids as many applications as they can in the hope that something will stick there or say that's a terrible system if you use our application processing services we can achieve more rational match between the applicant and the colleges and we should be afforded an opportunity to bring that quality to the process that is now lacking but why why is that irrelevant to the antitrust analysis well your honor we say that it is both contrary to any trust injury doctrine to overlay a subjective metric on these traditional object of indications price and output and we also say it is presumptuous to override and market outcomes based on the subjective preference of a disgruntled rival and in the case that we submitted with our twenty eight day letter the energy conversion case the court found exactly that that a plaintiff allege that it was driven from the marketplace and was in bankruptcy as the result of a cartel that was intended to drive down price and drive the plaintiff from the marketplace the sixth circuit described that as an antitrust trial driving price down is what the antitrust laws are intended to do and in the sixth circuit the defendant tried to do exactly what college net is doing here and they said well with our price and output metrics we need to apply quality overlay so that we can provide a better indication of what's actually going on in the market and the six circuit properly said as we have heard this court to say that markets make price quality tradeoffs individual consumers in markets get to decide for themselves do they want to send to applications do they want to send ten applications do they want to send three applications that is not something that courts provide a central planning role these vendors provide different products and services one of them has achieved greater success in the market the amended complaint contains all kinds of factual allegations explaining exactly why that isn't and the legitimate competitive advantage of that the common application all the amended complaint also talks about some of these asian that we've explored briefly but in the end that doesn't matter what we need here for a giant and i trust case brought by a disgruntled rival to go forward is first we need antitrust injury and i trust injury means show me where the system the competitive system using the traditional objective indicators that courts use price and output show me where the system health is degenerating the complaint does not do that the complaint instead offers facts that show the competitive health of this market is actually quite good price competition is robust quality competition is also robust consumers pick winners consumers pick losers when consumers pick you it seems like the market is working fine when consumers pick your rival it's easy to say must be something wrong with the market that's not the case consumers and their choices are what determine whether markets are functioning consumers determine whether college or not or the common application are providing what the market wants how do we know whether they are succeeding we look at objective indicators of price and output and where those indicators show us this market is working just fine as the factual allegations of the complaint show we do what judge easterbrook has said we filter out complaints brought by rivals who are hurt by productive efficiencies output enhancement lower prices redress there is not go to court the redress is compete in the marketplace thank you thank you very much rebuttal and we'll give you how much time was remaining makes clear that for closure of competition is a classic antitrust injury and that's what's alleged here coming up location wants to focus i was sort of singular focus on price but that ignores   contrary to the common application view of those allegations that these are not just simply our subjective assessment of what consumers ought to want their factual allegations about what consumers do in  them by common application of their dissatisfaction with the quality of the services that they're getting and that's you know again not simply not just an assertion that's something that we're going to have to prove and we're going to have to submit  evidence and expert analysis of the market to show that that is the appropriate way to evaluate output in the in the market the the promise of many of the common applications arguments on that point are  essentially the do you know the regime that now prevails in the market is just the result of free competition and therefore you know we shouldn't be complaining about it because we're suffering from competition and that's not antitrust injury but of course the allegations in the complaint are that the regime currently prevailing is not the product of free competition what we have alleged is that free choice by applicants is imperiled by the abuse of call a common application is monopoly power in an effort in an effort to eliminate competition so we're not complaining about the free working of the market we're complaining about there is a lawful interference with the working of the market finally i'd very briefly like to address the sixth circuit the court said correctly that to make out a predatory pricing claim or to show injury from predatory pricing you have to show that the sale is below cost in the district court misperceived this is a predatory pricing case but it's not it's a complaint about  a series of unlawful restraint on competition aimed at keeping us out of the market and for the reasons i've said we have shown that the harm that we are suffering is harm to competition and therefore antitrust