and i'll take eight of the fifteen minutes mr nader will go second take seven minutes i will reserve respectively two minutes and one minute for rebuttal thank you i plan to address the morton salt inference of injury to competition i also plan to address the meeting competition to fence my third issue is the contempt order but i'll rest on the briefs unless i have extra time at the end of my argument the evidence shows that even if everything peters expert said is correct differential pricing on michael foods products will make no more than zero point four percent difference in the cost of the food service package sold will cost the district court even made a specific finding head page forty five that egg and potato products constitute a michael foods instead the district court said that the want there's no finding either way district court so the relevant competition was the broad competition to switch customers between self and management but the court switched its focus from that competition to individual products such as when it came time to assess them stand she ality and the impact of the price differential on competition and let me back you up a little bit here because this plan we must of course proceed and recognize fully the opinion of the prior parent in this case that was an assistant to the trial and there are frequent in your adversary's brief about the extent of application of law in the case the determinations that were made by earlier panel to what extent does the language of the earlier opinion constrain this court in the focus that we take  in our what did the first panel really do of it with respect to the morton salt issue along i was going to focus on that for the moment the court did the following it said if a substantial price means individual pricing products differential or means the differential of the bottom line service package is not addressed by the stuff there's no rejection of or acceptance of the minneapolis honeywell while the other price of the differentially price product with a component of an ultimate service not a component of the manufactured product so although there is no third circuit case law coming on that wasn't all the unbroken line of cases from every other circuit and the expert agency purposes of the roms patent so i would suggest that the court should follow that unbroken line of cases and that it's a political here but if the court has any doubt about whether to apply morton salt or the minneapolis honeywell line of cases i would suggest that the correct mode of analysis is to pay attention to the policy of encouraging price cuts and competition and therefore narrowly construing the robinson patman acts prohibitions this is a directed to your adversary and hopefully i'll remember to do that yes but are you aware of any other case that has made such an expansive application price now the policy of encouraging price cuts and competition is a good segue into the second one we've discussed which is meaning competition is the starting point for the district court's analysis of that issue should have been the supreme court's one nine hundred seventy nine opinion instead this court started its analysis on page sixty six by citing gypsum for the proposition of the meeting competition of the nz maybe how to correctly unavailable and i'm quoting were a seller has limited information about the prices offered by competitors that was the wrong theme for the district court to start with because less than a year after reading those dicta in gypsum the supreme court addressed that exact situation in a square holding an a and p what is their standard of review with respect to look at falsity of event which is the next case in the line there were findings of a lack of good faith by both lower courts in that case and yet the supreme court reversed it said the courts applied the wrong legal standard but then it left open for their factual determinations on and if you look at page seventy seven of the appendix and actually with the last paragraph of what purports to be her findings of fact she says the greater problem is that acceptance of losses assumption would be contrary to the primary purpose of the  goes on to talk about her understanding of the purpose of the act as the reason why she rejects wasis testimony as adding up to a good thing i would respectfully suggest with that is a legal conclusion excuse me would you just just day effort to to meet her in the abstract the way it should play out is that whenever a reasonably prudent business person does what reasonably prudent businesspeople do to respond to competition they should be entitled to make the whether or not there is actually competition out there who are seductress those purchases and how much can be inferred from the existence of an ongoing relationship between these explicit does it have to be it has to be about one tenth as explicit as it was here why do i say that so boldly because in the n p case the entire conversation was i have a bit in my pocket and you're not even close ok what do i have to do well fifty thousand dollars would be a drop of a buck that's it those are all the facts of the n p t and the supreme court said that is enough to conclude as a matter of law that the meeting competition defenses available i would suggest the very testimony  quoted from vicky watson paid to sixty seven to seventy seven is at least ten times as explicit as the n p facts and indeed if you go to the rest of it you watch this testimony that she didn't quote you see there was a year long negotiation for the potato contract with a great deal of back in form you see that the egg contracts were the subject of weeks of negotiation so there was very very extensive back and forth in this case much more than me now since i do have just a minute remaining with regard to the contempt issue let me just invite the court to read the letter as we just heard sixty seven to sixty eight the joint the second paragraph says michael foods will comply with the court's injunction by suspending sales and shipments to fuser until the resolution of its appeal of the works god comply with by doing something the statute explicitly from its four paragraphs later the letter says of course if users will stipulate to a sta found to be discredited yes but only if a stay is under that's the key to understanding this contempt issue that paragraph is explicitly conditioned on stipulation to a state which could not have taken effect without the court's approval and it didn't say we number of arguments on our brief the two issues are the actual competition issue and the toledo mack issue what should toledo man counsel us to do here is the most recent years pr act to provide a price differential to one prospective buyer versus another primitive buyer if the price differential is provided after the competition between the two perspective purchases purchases is already over because as in fact that this court previously held in the crossroads cogeneration case as the fifth circuit held in the mc manufacturing case the robinson patent act protects not competitive bidders but competitive purchasers competitive purchasers are to purchasers who have purchased product for their inventory at discriminatory prices and are competing to resell out of their discriminatory inventory so what following the mc manufacturing case is that it does not violate the robinson patent act if the favored purchaser has already won the competition before they get the actual discriminatory price and of course that's exactly what is happening in the context of this case as alleged by fees or journey the time of the so called competition over whether or not a client institution will self operate or will outsource to a food management service company such as that act so there are no discriminatory prices being used on sales by michael foods what michael foods is doing is it selling to all distributors at the distributor level whether it is  what i would say is that this is a special order in the context in is used in the mack truck case what what the what mack truck says is a judge snuff that if the competition is over and an order is then made whether you call that a big market or whether you call it of a special order that different price differential does not have any compay cause any competitive injury but this the competition isn't going on is that so you're saying there's only one that is correct that there is only a discriminatory sale that takes place after the competition is over if it is a discriminatory sale at all and that's precisely why of course what is what is happening in this case at th while the competition is going on there is no deviated pricing being provided on a cisco purchase order because on a suit actual purchase order because it actually has an order to anything they don't order any food for a client institution unless and until that both won the competition and entered into a binding contract mr nader let me ask you this question if if we fund the district court was in a year in misinterpret need not apply in mac trucks to do this case what to do what relief should we agree i think you should reverse the the judgment below was the direction to apply mack trucks or should we make a determination i think the room i think you should make the determination judge fisher because these facts that we're talking about of when of when the purchase takes place a david price judge rambo has already made factual findings about that in her opinion the irony of this case to go to judge smith's first question for mr engler is the irony of this appeal this is that in fact we believe judge rambles factual findings pretty confirm our case on both the actual competition and mack trucks issues and ed it's her legal conclusions about whether or not mack trucks properly applies on these facts of pages a one ten and  sniff judge rambo says that it doesn't matter that saddam was not performing the broad line distribution function that fees are spur forms she says it's of no significance in determining whether or not are gauged in actual competition and her reason for saying it's of no significance is she says because that xo contracts with distributors to provide distribution services but that is a legally erroneous conclusion under this court's or the previous panel's decision in this case the previous panel said we have to ask whether an economic reality so that so and fears are acting at the same distribution allotment and once a deck so enters into a contract with a distributor it's not the distribution level that's at the operator level the customer level what it's doing in that situation is the same things that john that the jones day has done in this case we got hired by saddam to represent them and and they are customer and they've outsourced the handling of this appeal to jo for the cost of paying the printer and that's exactly what judge rambo found that subjects i was doing with the distributors that it hires that benefit its client institution it out it it fronts the money and then it gets reimbursement and we respectfully submit that can't be competition in any sense of the word competition particularly under the robinson patent act which is not smith pointed out the scornfully don't accept should be narrowly construed so as to not conflict with the broader purposes of the n t trust and in doing so what the court failed as a matter of fact after a ten week trial and a trial help like that it was ten days what the court found was that the competition was continuous as a matter of fact this was not a situation where you have one switch from self operation to food management and it stays that way in fact what the court found is a matter of fact is that this constant competitive into play just like there are constant purchases simultaneously by the two competitors my thank you began by saying going to address that we don't lack and yes and so what what is the difference between this market and the markets described in toledo mac yes insley you know back you had just as involved with trucks a big market situation where what happens if you have a special water bid only one person prevails and that did the competition ends over finished and then there was one person purchasing so there's never contemporaneous purchases what judge wimple filed here is a factual simultaneously purchasing i give you one example how does that distinguish this case from toledo mine because a government program what's called the n o i program and fees it was in that program it said that so wasn't so at the same time that it was buying products from sit back sell some michael foods products if the the boy a few michael foods products at the very same moment from fees are continuous competition this is just one example where it happened at the same time in many other cases fees or says selling a product  factual dispute in that in that in the toledo back situation the purchase is a not contemporaneous the second purchase never takes place in sweden back only one competitor ends up making the purchases so the factual road to respect where your role in the facts and that's why the facts is so portly or it is not a situation where quote there was a bid and the competition is what the record shows is that  so the entire first contract that was issue here is zero evidence that even that there was a competitive one that's number one number two the last potato contract two thousand and five they don't even contend that there was big dog means they are the big volume purchaser that's what the district what fell then at the very end they alluded to well if you don't we don't like your business we might switch to sunny fashion they never indicated anything about discussing about the meeting couple fish in the fence if you look at the elements of good faith which includes reasonable efforts to verify in fact the decision of this circuit the third circuit decision were offered the discriminatory price before anything was a mention about a competitive offer that's very important looking at the good faith intent and they wrote a document saying we're doing this because of the big book we track management there is no document and very very significant we haven't even seen the offer sit back so and they have the burden of proof not even produce a witness to say he is what the competitive reform was this is a here is what was being that this is offered this is not a in this record to establish what this offer was what its terms what scope was and fifty wasis testimonies critical she admitted what she was doing and her testimony and was basically giving this price but she felt like this was a big customer and they just wanted to do it for the business that's not enough if that was enough the whole premise of the robs a patent act that big was that the fact that users is a distributor and their manager management is not despise correct the fact that the economic realities explicitly  number one of them i think it was mr rowe chef said what we do was we can vote self up that's why we're in business and it goes back and forth and the number one competitor was that i'll give you a psych patient for this if you look at thirteen women three for three one and specifically run three for three three this is one of the strategic plans and they say competitor stiff person number one competitor self operated and then the testimony was what does that mean and what it turns out what that means was well our competitors are there with competing with distribut to sell to the self operated who do their own who are management and get the distribution of procurement separately that was the testimony by all of this is that some witnesses they can come in here now and say oh well we don't really compete that's not th smooth competitors and use them affirmatively which they did in their marketing materials well which are in the evidence to switch customers so not only they have knowledge they begin prices that  specifically we're getting ices that are not available to anyone else it can get you one of them said falling to twenty five percent less in food quest than anyone else this was the whole strategy so