single family owned theater in forest hills in the borough of queens new york it slopes seating modest admission prices are in sharp contrast to the wriggles midway which is a two story stadium multiplex regal has over seventy six hundred theaters in the united states and by virtue of this massive national circuit it has successfully threatened major film distributors with a nationwide boycott of their films unless they agree to license first foreign films only to the midway to the exclusion of the that they will not distribute films to them and only to the riddles midway because of warner brothers concurrent licensing of american sniper to the cinema market in the regal in tw wriggles clearances to be a violation of the sherman act and on top of that we have a department of justice investigation and the fact that regal split clearance practices are being allowed to proceed in other litigation in this country that state attorney generals are proceeding on claims and the department of justice has opened an investigation into wriggles clearance practices and moves the moves the case from your amended complaint as i understand it you define the relevant geographic market as as the as the forrestal far as tells neighborhood of queens ranked correct your honor  and you say it's easily accessible by subway rail bus and car but in other parts of the complaint your emphasis seems to be on the bar of queens as the relevant market in the same paragraph as paragraph twenty three you allege that and i quote it is not reasonably practicable for the overwhelming majority of queens residents to leave queens see movies on a regular basis even if prices in queens increased significantly in the amended complaint also seems to move to move the scope of the market saying that and i quote residents from other cities are municipalities do not come off and do not come to queens to see films and that realize threatened and coerce film distributors in granting regal exclusive clearances in queens rather than forest hills but i think that we can say that there are a number of the other theaters that operate in queens neighborhoods around forest hills and if forest hills is easily reachable by subway rail bus and car from surrounding neighborhoods as you yourself say then i would understand that the reverse is also true that people in forest hills can easily access other neighborhoods other theaters for example it's  easy to get from forest hills to to kew gardens it's very easy to get to it from forest hills two to jamaica to you know all the other areas leading up to forest hills so i'm having trouble understanding what is your market what is the geographic market that you are talking about our market your honour's is forest hills not queens not the entire  makes that a market just because there's a section of of queens which is part of new york that happens to be called forest hills probably for good reasons but what makes that separate but first have rarely found that narrowly defined geographic markets are similar to the want to ledge are proper and viable and this is don't understand why it's a separate why it is a market just because it's c forest hills this is not i understand and that goes for point which is one of the the second points that the district court stated and it's just personal the case was whether or not the theatres were in spandrel competition our theater the cinema art caters to a different clientele in a very different setting than the regal midway and the the cinema mark being at the other end of forest hills away from the subway stop away from that defines our market we have to up there if there is ever not insubstantial up to if they are not insubstantial competition then what's the problem for you i mean i would think that your problem would would be that yes you know we cater to  succeeding but what you're telling telling us is that the clientele is different and i'm out of time please continue the clientele is different theaters are different the movie going experience is theater is different the pricing are the cinema art is significantly less expensive both protect the price and concessions and you are as clearance over theaters where the clearing theatre is not insubstantial competition because i grew up there truth in advertising i live on the upper east side and see most of my movies on the upper west side which is a full central park or so  are you worried about geographic market are you using the paramount pictures tast which it seems to me may may do a carve out in this particular kind of case where there are clearances were we believe that forest hills is a relevant geographic market and we could have clarified that in an amended complaint which i'll say for a part of my arguments of why we should have received leave to amend  please the court as a resident of the district of columbia i will not talk about the meets and bounds of queens geography in particular but i do want to make a few points first of all going to the paramount question that judge hall brain just you know i think if you look at page nineteen of the reply brief there is a rather striking point in that pa be an antitrust claim involving a point if not it minutes that it's no constraint on the defendant let alone putting aside the fact that it seeks to carve out of its market definition all the theaters in nearby neighborhoods without any allegations as to why those theaters are not in the same geographic market do we know anything in the record that tells i again from maybe maybe this particular movie theater is the only one and within ten miles how do we know from what's before us that you are describing this you know we submitted a google map and asked for judicial notice case that was a consent decree entered into by the district court that had all sorts of prophylactic measures that involved a you know at that time film distributors also exhibition the year terrors and there were all sorts of vertical and horizontal collusion issues and you know that was a consent decree and if you look at the supreme court opinion in that case it actually and modern and i trust law we've gotten to a point where all vertical restraints are evaluated under the rule of reason and a fundamental precept of the rule of reason is that in order to state a claim you must have a didn't you nation of the competitive process so you know the theory here seems to be that we've moved towards rule of reason treatment of all section one vertical claims yet there  still a per se rule for a clearance over a theatre that is not insubstantial competition and respectfully i would just suggest that any notion of that is a not dictated by paramount b if you look at the j j theater case in one nine hundred fifty four it did not hold that a lack of substantial competition could result in a finding of a section one violation even back in  four it actually found the opposite that if theaters were in substantial competition there could still be an antitrust problem in some circumstances and then you take it forward to modern day and i trust and this kind of claim that the section one claim under modern jurisprudence and there's nothing about the paramount affirmative a consent decree that dictates that it could so you know that's what i would say about paramount i want to make just a couple of other point about what about let me just move if and i know you're moving on to there is this court's decision in lauralee right and under that after having initial letter briefing before the district court after having a hearing before the district court the plaintiff here did a man and this was not a situation where the  never amended and was not given a chance to amend and then you know we filed our opening brief on the motion to smith's pointed out in great detail the problem of the market definition the problem  lack of agreement the problem with no allegations of harm to competition they were on notice from the wet or from the hearing and from our opening brief never proposed it briefing before the district court anyway they intended to remedy the this the problems with their complaint even on appeal it wasn't to the reply brief when they suggested some amendments they might make but even those amendments coming on a reply brief on appeal would not solve their problems and feeling to be a possible claim what about the your your average your adversary so amended also alleges that individuals at each of the film distributors acknowledge that regal had obtained and controlled the clearances coach there are no allegations in the complaint that  not simply consistent we have unilateral action we go all taking the position that if a film is plain at the cinema art it does not want to play that film and the distributors reacting accordingly i mean there are allegations of discussions with distributors but there's no allegations any of these distributors said you know we promised recall that is of we gave a film to regal we were not also give it to the cinema art that's perfectly consistent with legal taking a unilateral position and the distributors taking a unilateral position in response to just like monsanto you do think that if there was there was such proof and  effect on competition but you get into effect in competition you'd still have the problem of a lack of plausible allegation that forest hills its own market for the reasons we've been discussing you know i would cite judge hall's opinion in concord associates as being sort of a similar dynamic sorry you know that's one and and you would still have the power you would still have the problem of of of lack of you know any harm to competition from the fact that you know the two theaters that a minute lee do not draw from the same customer base are not showing exactly the same films so it's sort of the allegation is that you know reagan came in and basically wanted to limit his distributorship for purposes of not having competition among to two movie theat plaintiffs in your view would still have to show that there is some and actually and i competitive i mean they want to have it within a relevant mark you know if they would have to show that prices would be lower and quality would be higher for a movie goers in the relevant geographic market if you didn't have the sigrid if it weren't for the agreement and that you know that ignores the other nearby theaters it ignores the fact that they at mit i mean it's hard to see how the fact that the  might be point a same films as the midway could have any effect on keeping prices down at the midway or keeping quality up when by their own admission their theater does not draw and compete for the same customers  a realtor's definition i understand my understanding is that it's a chick graphical definition there protests down it's a separate zip code is there any way we we can say gee we have now just stepped out  greenfield says you were given an object you were dealing with an amended complaint in the first instance we were but i believe i do get another by and i believe even though we amended prior to the motion practice we were put in the same position as lauralee we were we amended prior to having a fully briefed motion to dismiss and it judicial determination of the issues that were in the complaint and i believe that a reply brief does supply additional facts such as we can clarify the market we can add more facts you addressed it in your letter reply brief that is correct your honor but still without the the formal judicial determination that our complaint was deficient we did not know all of the areas that could be addressed  amended complaint well didn't they say during the hearing in the in the judge summarize your summarize the arguments summarize regal's argument as and  contending that you haven't ledge backs that support an agreement or anything to suggest that there's been a demand and an agreement or an assent to that demand in this market but i think that also during that c erence the court identified that we had set forth allegations of an agreement and in fact there was no discussion at that conference regarding the mar the geographic market so sort of under understood what it what it  was and there was no contention to the contrary is this if i could ask you why is this case in the southern district rather than in the eastern district we had a discussion of that as well on  record as queens is in the thing about geographic markets that's in the east and from california when we looked at it we thought this was in the southern district which is why we filed there the court in looked at the matter and took jurisdiction there was no objection from the defendants to that but there was a discussion in balancing that that issue if i can make one last point given the amount of time please go my adversary made points that there could be unilateral decisions business decisions why regal at the theaters the motion picture companies made these clearances the standard is on a motion to dismiss to accept off facts alleged in the complaint is true and give all inferences to the to the plaintiff the court is not allowed to balance over whether to the defendant's position is better than the plaintiff of the case which is a summary judgment or trial standard not a standard for a motion to dismiss respectfully or honors this case should be remanded back for discovery whether on the amended complaint or for leave to amend to submit a second amended complaint and i thank you for listening thank you thank you for your arguments the what will reserve decision