please the court plan of skin not escape the fact that this case is all about reducing prices the injunction that the court below issued tells it all the injunction privets discounts relative to market penetration linked to market penetration that is what the court below decided and plaintiffs can't prevail in this case because eat prices were never below eaton's costs that was never disputed and never proved otherwise the plain simple an unavoidable fact is that the plaintiffs failed in this business because they could not or would not meet eaton's above cost prices that's exactly  it is it is meaningless in fact the judge said so in the at the point of reading the injunction of the judge said she said that this this injunctions not going to do the plaintiffs in good there they will have no direct benefit of this but i'm going to go ahead and issue the injunction because of the possibility that they might someday we enter the market but was no evidence that would support the proposition that was any real probability enter the market so your honor the point is there might be some benefit to the consumer but that's not the standard for the and i don't think there would be a benefit to the consumer is a matter of fact judge fisher  anything like that you're telling the defendant you can't reduce prices which the consumers wanted the purchasers wanted so not only would this judgment this judgment would affect the consumers and that's the way i was answering your question what would not benefit the consumers it would certainly not benefit the plaintiffs in this case and the injunction is therefore unjustifiable but with respect to liability there is a standing question will the resist article three question there is just simply not under these circumstances no article three standing to issue this injunction there is no irreparable injury there is no concrete specific imminent risk of harm to the players and therefore there is an article three question in addition to the anti trust standing question this is this the the very language that the judge use specific first sentence by saying that there is no possibility there's very little possibility that there will be any direct benefit to the plaintiffs as a result of this injunction answers the question that injunction cannot be sustained on the basis of that factual record now we also think it is very very important in this case that the be the motion for a judgment as a matter of law should have been granted under this court's decisions under the decisions in many circuit courts that have them a better considered comparable fact so there is no justification for proceeding with an antitrust complaint the supreme court is is virtually unanimous on very very few things as we know of but until this issue in the weyerhaeuser case in the in the language that all the court agreed upon in the link line case going back to the brook group case lowering prices is what is good is is a good thing for consumers and when people are in competition and they want to  mechanism so that they can sell as many of their products as possible by linking their ambition to the reduction of prices that is a good thing and as the supreme court has said it is very damaging as long as those prices are not predatory as long as they're above cost the supreme court has said if it's a pricing case there's no question this is a pricing case that's what the judges injunction did best apply and that's what the district judge said the hammer was in this case it's all about price and is definitely attempted to call it something other than what it was and they would they wanted to avoid the law that i was talking about but the fact of the case the guts of the case the gist of the case the core of the case is what was the hammer that's what the district judge called it was the offer over reducing prices if you purchased a certain percentage of your needs from the it doesn't really matter if you could even call it in an exclusive dealing case the plaintiffs try to do that but is this course specifically said in the race tire case is not that's not a violation of the antitrust laws a competitor entitle to say i would like to get all of the business there was no but this clearly was not an exclusive dealing case because the original equipment manufacturers the customers for these products could purchase from the plaintiffs any time they wanted nothing in these agreements and i think you'll see this on page the joint appendix not intended as the judge specifically said these were not exclusive dealing arrangements because at all t exclusivity what there was was an incentive to buy from the most efficient and competitor yes i am because the i meant it in terms of the consumer of this product initially but as a matter of fact the of the purchasers of the trucks with this equipment in them were the ultimate beneficiaries because the record demonstrates that eaton insisted that its reduction in prices be passed on to those ultimate consumer that's correct and that is that isn't very important distinction from the un i was going to make that if i had time that the they did not have to give that choice i mean ultimately the builders of the trucks wanted because the market was collapsing to make it as you fission as possible with respect to sales that's absolutely true the record is very clear that not only were the original equipment manufacturers sophisticated powerful and no pushovers of this was something that was working something down their throat they wouldn't have accepted it and  of the trucks are generally sophisticated large purchasers of trucks and they were doing the best that they could and they were benefit by benefiting from this process so what the supreme court has said in connection with this is not only are low prices advantages but we don't want to penalize or put people in a situation where they can't figure out what the rule is with respect to the pricing of their products in the most recent decision i think was the l lying case the chief justice speaking from the courts of lawyers have to be able to explain these things through their client you have to be clear rules gotta be clear rules because we have to know what damage has been done by the allegedly improper practices that's one reason secondly because we don't want to discourage low prices and thirdly we do not want to have inefficient competitors to use the and i trust lawyers as a protection so that they can raise prices above efficient levels now and in this situation the record replete with evidence that the plaintiffs in this case could have reduced their prices they were asked to reduce their prices from time to time they did not do so eaten was making sufficient profits with respect to these prices but was doing the best it could to capture as much of the market as they put understandably that's what we expect competitors to do the plaintiffs in this case were simply not willing to reduce their prices to be at a competitive level yes and the jury instructions didn't focus on price cost and all that never got to the jury because should've gotten to the jury because the price cost has the supreme court says if you're pricing above cost and unless the pla dangerous probability that those costs will be recover later on in higher prices this case never should have gone to the jury yes and what the jury focused on was that question of exclusivity that you were talking about and the jury instruction basically said if you find that the o e m the original company manufactures were committed to buy a substantial clear we don't challenge the instruction because the instruction doesn't instruct and with respect to a standard that violates the and i trust laws this court in the race tire case specifically said exclusive arrangements are even encouraged because you want competitors to go out and try to do this but the fact is with reese is certainly these prices were sufficiently attractive that the o e m s wanted to purchase from the l motions which is what should have happened here the fact is that you cannot violate the and i trust laws if you're pricing above cost and you're not and you don't demonstrate of the i fear the plaintiffs that there's a dangerous probability  of those costs this case did not even come close to meeting those standards it should no i don't think so i think it unquestionably is a pricing case and you can look at the injunction because that's the only thing the judge focused on what if it isn't a pricing case it is something in in the ether as  well that's my point was that's what the judge thought the case was that's what the what the plaintiff's lawyers said when they argued in favor of the admissibility of their expert witness the expert witness referred to it as the incentive which was driving the whole thing the judge referred to the pricing as the hammer so what i'm saying your honor is this unquestionably was a pricing case because that was the only thing that provided the incentive that was the would i would say that i think i understood your question if you didn't deter and determined not to overturn a jury verdict as that was and if you left the damaged resolution in place which i think the evidence amply supports this witness did know what he was doing with respect to damages and eliminated the injunction that we would be if we accept that outcome but i think as a matter of law it's from this from this court with respect to antitrust it would be very  recognized was about to grow dramatically because of its benefits and yet even wasn't going to have an analogue to the freedom line for years equally he can avoid the recognition talking about the supreme court cases that it didn't win a battle the battle of consumer choice by offering consumers a better deal what it did was use its monopoly power over the oh yeah years to deprive the consumers the fleets the mom and pop truck buyers times it's to preserve says that so must you must mean that but then it's professor murphy yet another major concession this is that appendix fourteen ninety seven the very next page where he testified that quote such small such small better price for this case is about and why we call it exclusive dealing eaton was saying i am a monopolist and you for o e m as you know and you will not pay you will buy all of you virtually everything from me and you will do so for i have a seven to ten years until any trace of any significant competition is long gone and that's why not only  frogged by a new and very strong zia competitor but i did have monopoly power which it doesn't contest on appeal in this wasn't just the monopoly power over transparent tape in the caverns of a wal mart or had here was not as they said if then think of brooklyn in brick roof you had someone with eleven or twelve percent so they were no monopolist they went to their wholesalers and said look we'll offer you a better price if you buy more they had to discounts  rebates that's not what happened here because in fact eaton's argument plays right into the seat and says that at least for a while our market share with the o e m s went up i went up because people wanted the freedom not because of all its advantages even the freedom i was a much higher priced product and basic manual transmission people wanted that product so we didn't didn't stop us saying gee if you buy more from me even if you buy ninety two percent from me i'll give you a better price that's it and says you will buy this from me and that's why it went to the whole array of conduct with that was a concern your honor of the o e m s and you see it fear of retaliation fear or maybe i won't give my deliveries on time maybe i won't get the products i want maybe i won't give the same price as my competitors you see the future of the  transmissions involve us on trucks to follow his own competitors they first came into this price fixing agreement that vova said ok because i need you so much i will disadvantage my own products in favor of your products even when to pack  and pack are it said this is with respect to the performance transmissions and its joint appendix twenty six forty seven to forty eight in said don't you forget that you have a big percentage of your sales are with  whole performance trucks on off road construction trucks locking trucks those kinds of things not only am i a monopolist overall but i am the only source of supply for those products and that's the difference here historically this market right now is called the spectators so that term mean the truck cars could specify the components of their truck the trucks you have the data but say i want this transmission in these well that's how the trucks work that was exactly how the trucks were until even said now o e m is ready to enter into a partnership where you're going to block visibility voc accessibility of the truck buyers to competitive products that was three explains how the freedom line which is a product he didn't have an analogue for disappeared from the o e and out of books because he said i want that out at a higher price because they were charging price penalties for transmissions that weren't standard invited book remember she is a whole combination of nine not directly the freedom i would be installed by the truck builder in the truck he and i don't think there's anything in the record of the truck buyers just buying the transmissions directly and selling it and what happened was even closed off there were four places we could sell to for o e m's and they closed off every one of them from five to seven to ten years and they said what we will do is we will want you to take them out take our product out of the data book so how is that possibly pro consumer uneat doesn't even have an analog it's not a preference it's just we want you to disappear and then we'll have them imposed by stealth resale price penalties so that we have somebody comes in and says i like that freedom a lot you have to say you i am have to say that i'm going to charge you more and they were penalties no doubt about it council says that even one of these rebates passed along there is no evidence of that in fact you can look at every one of those days there is nothing about passing along the rebates and we cited in our brief evidence showing that each new year for example for freightliner that it was not being passed along they say that there are rebates are not getting down to the field level so these were penalties that were i let me answer that three way because it's not this case here when you your honor says we're talking about different cases you're absolutely right he needs opening brief they said nothing about all this other conduct the taking us out of that of look he taking trucks with our transmissions out of sales packages and sales promotions refusals to quote residual values on trucks with their transmissions resale price middle penalties they said nothing about that and we said at the beginning of our statement of facts basically we're sorry you have to spend a lot of time on this because they didn't tell you what this case is about and then if you look at their reply brief they still don't deal with that a book exclusion resale price penalties and all the rest on it not including for example pack our pack are said i'm  profitability by giving big discounts number two is what they're saying is they realized it would work if they didn't have the better product you brooke move brown williams it was attacked by a low price competitor the generic cigarettes in the pages three i was attacked by a low price competitor the private label paper guy look pages so if you're attacked by a low quality low price competitor you may say ok well respond by lowering our p was in this position this is a situation that none of beaton's case in fact none of our cases deal with is when the monopolist didn't have to best product and so lowering prices as professor murphy said this is fourteen ninety seven oral argument and says this is just about pricing still doesn't deal with all the other conduct that they need to do and what they did was they reached to the o m and grab them by the throat and said you need me i'm the monopolist and i'm one hundred percent of the performance transmissions and i want you to block the truck buyers the consumers who may be sophisticated may not be sophisticated we didn't get a record site on how many are sophisticated and how many are not we want you to block them from their traditional choice of transmissions and we want to block them even from the visibility of the better product the freedom line that we can didn't happen didn't have for years thousand strategic business plan see if meritorious that document was admitted into evidence at trial with no objection and all the cases show the advisory committee no show the language of seventy three shows that that also rely on information that's reasonably reliable by experts but the core basis and all that he says of course is he doesn't cite a single case to the contrary and it makes sense because if the information is reliable enough for me to show it to the jury to read it to the jury to argue it to the jury then there's no reason it's not good enough for doctor to ramus to rely on it for his calculations or even says well there are two phases of trial here he doesn't say why that matters he should see  business plan is already in the evidence and even identifies no objection meritorious objection that it would have made if damages were part of the first trial that it could today otherwise it just is a matter of law the district court was wrong projections for future growth or an appropriate basis for estimating lost profits and have a salon of sense when you look at the special when you look at the evidence here in terms of indicia of reliability here we have his record shows to think that they were kidding themselves especially since this plan was six years before the litigation so even eaton doesn't argue that there is a little geisha paint due to the plan and in fact we know that they were being very careful here because the document that dr dre misused the projections there had already been reduced twice because of recent adverse market developments and the word said look we don't want you to be overoptimistic we want to make sure that you're not projecting too two two thousand and one that by two thousand and four and two thousand and five they expected back segment to be up to half the sales so that fully supported our projections as to the potential growth of the freedom and then we had  who tested and retested a seven or three exclusion possibility that the district court said was i'm not going to give you another opportunity to modify your calculations but in reality what the district court when do is give us one opportunity to modify or calculations it was one critical to the public interest in the enforcement of the antitrust laws and even the vie for cation you know we said to the district court please let's work out the damages issue first and then let's go to trial and first the district court was amenable to that and then changed  incurable prejudice that now we've had almost three years since we said ok here are alternative calculations there's no damages phase trial scheduled so there's no prejudice much less i will try to be a vision we've heard that the plaintiffs were equally fission competitor they may have been equally for the vision competitor but as i said at the very beginning they were either  e or unwilling to meet the price reductions so if they had the capacity to do it to reduce their prices they did not do that we just heard that these  modest they range from one fourth of one percent up to three percent now we could argue about whether they were modest or not and they were cumulative based upon the overall demand for the products but the but but they were market share discounts based upon what the o e m s want the record is clear the what was happening at that point in time is that the market was falling apart demand for trucks was cut in half during this period of time so the o e m s themselves didn't want volume discounts they specifically wanted to know that they would be able to meet the standard for the rebates by a market share discount that benefited them and also your honor that benefits the smaller competitors are o e m might not be able to match the larger o e m s with respect to total sales by but they can always match  market share discount fear of retaliation i think that we heard a lot about that just a moment ago these were powerful original equipment manufacturers they had the power to determine whether they would accept these arrangements or not two of them made their own transmission with respect to retaliation itself we've heard something about that but it never happened there was ever never any evidence there was actual retaliation or specific threats of you don't do this eaton is going to quit selling transmission that doesn't make any sense and they never did and they never would have they never retaliated the problems that are the plaintiffs face is that they did not want to reduce their prices with respect to the question of whether these agreements were exclusive as i say decided from page nine and ten of the joint appendix this these are the words of the district judge the long term agreements were not quote were not exclusive each customer remained free to buy on these transmissions from other suppliers including z f m the incentives offered by eaton were what each customer wanted now that's very much like a race tire the competitor in race tire could have competed and did compete with respect to these supplier should be encouraged right now if it is either a defacto or the it wasn't of if it wasn't deja exclusive agreement there was no exclusive exclusivity at all they c terminated by the o e m s at any time and the penalty if they didn't reach the targets for share penetration was they didn't get the rebate so it wasn't at the we didn't say anywhere in there we will cut you off with transmissions now with respect to the fact the exclusively the only thing made them attractive to the o e m s was the price and the discounts so we're talking specifically about discounting prices with respect to whether we're talking about two different cases we're not talking about two different cases the plaintiff wants planers want to call it exclusive dealing because they can't go anywhere near a price case because of the go  price case they didn't even try to put out evidence of the price cost standard as far as the pages is concerned that was as you know a bundling case that would involve totally different facts and an up under circumstances where the for the rival could not compete for with respect to one of the products the fi i'm going to end on damages the doraemon damage testimony in the first instance was based upon a one page business plan he didn't know whether it was the final or a draft he didn't know who wrote it he didn't test the factual assumptions in the s b the b p and what the judge finally threw up her hands and said this is on page of the one forty seven of the joint appendix i frankly find his report the longest densest most confusing report i've ever had to deal with in my eighteen years on the bench now the judge was extremely conscientious with looking at whether the tests under seven zero two seven zero three we're talking about using reliable testimony that shouldn't have been a surprise to anybody if you want to qualify an expert all right the the child punished the expert purported to bases testimony was not reliable he didn't even know who wrote it now with respect to the  that's correct that's correct and i'm just saying that if you if if on the um unlikely possibility that we you disagree with us on what happens with respect to certainly par yes yes i fully expect understand that it's happened to me with respect to that then you might go to the damage point the judge was perfectly right with respect to  standards of the rules of evidence with respect to this evidence with the respect of his witnesses understanding of what he was talking about with respect to this as far as reopening the case was concerned the judge went to great length she she insisted on the discovery order and the order of trial and preparation she specifically said now if i do that furthermore you have the alternatives damage there is before you didn't do them we talked about this in lemony the discovery period the end of the day this case is about above cost discounters there's no evidence that there's any discounting below cost no evidence of predatory prices no evidence of them of the possibility of recoupment