conclusion and that that conclusion establishes that lyson has engaged in any combative conduct from should be held liable under section seven one and two of the sherman act because that conclusion demonstrates that live nation is using what its own c e o described as its incredible market power rising among others from its size its role of ticketmaster its control of the lead artist management and in the in the country to coerce court granted live nation summary judgment and it and while the did because of the breath of the district court decision there's a number of issues that were raised on the on the breeze i would like to focus absent any questions from the court on two over arching issues the first of which is would submit that the real reason for the court's decision is set forth in the sentence it writes immediately after the conclusion i just can quote it the court states plaintiffs are seeking relief that would only have been realized if competition where reduced and i would submit that that's not a valid or even irrelevant consideration in this case that the focus of the nanny trust case is on the defendant's conduct whether it overarching artistry choice regressions to professor al haig performed which so these are regression analysis that show to a ninety nine states percent statistical certainty that live nation is is its conduct  right but we do have beyond did a regression analysis we do have direct evidence for instance we cited numerous instances where it is clear that artists have preferred to play mary rather well at the same time they wanted to participate in the live nation tour and each of those instances live nation specifically stated not merryweather cannot happen you will not perform it merryweather this on the basis forces or swinging of the pot and it's first that's not true there's there's there is no evidence in the record that live nation sweden to pot and clearly there is no evidence in the record that live nation in any way increased the compas content compensation were adjusted the prices for the baltimore washington appearance that's at issue absolutely no evidence secondly the only time there's one instance where you are you conceding that there may have been an increase in compensation at other venues there's only about to say that there's want you you read my mind there is one instance only one where the comp and where the it was with respect to nine inch nails i believe it's two thousand and six appearance after nine ensnare else finally conceded that it would appear it at at nissan live nation adjusted its compensation at other venues where it has monopoly power and what is really doing is saying i am not going to pay you fair competition compensation and event in a market that i control unless you also appear at nissan that was one instance that's enough or you need to show more well what i'm suggesting is that's the only instance where compensation was adjusted in every other instance we present we we pointed to in fact there was no the changing of the ar repeatedly for instance at pages six seven a party twenty eight thirty five twenty thirty six for the record the artist management one of the tour where mayer and crowe would appear at mary whether they would then go to charlottesville and they would not a play nice on live nation specifically stated that's not going to happen there's a whole series of internal emails within live nation if for instance it's basically and ends with with regional president saying explanations and legitimate explanations for why some artist would want to choose nissan and i don't see i'm just not sure where the evidence of coercion to  evidence that mary weather is considered to be the better venue and nissan's excess capacity is only relevant if you're an artist who reasonably expects they're going to sell more than then not had the nine hundred thousand seats  and to reach twenty five thousand and also are you going to sell it at event then you that is in we've given you evidence throughout that is not considered to be as good a venue as murray whether it nowhere near draws to fans like mary whether among other things  whether it's sort of like that the wrigley field of music venues it's a historic venue our artists consistently recognize it fans consistently recognize it and you can go through all these reasons but we gave you the court an artist choice regression according to at least one trait is that's not you lose now well i disagree with that one is because it also shows that fifty percent also includes instances where a lot where compensation was paid to live nation in order to allow it to the artist to appear at nissan at fifteen percent also incurs this i thought ten percent was a benchmark one of the people who i just whom i respect in this field is professor  rita at harvard and you study trust for a long time and he says look if there's a ten percent rate where somebody is not choosing a tied product that's pretty significant trust scholar is i think there is that's that's pretty significant the professor reid is saying is that is in the field of where where you're trying to show through indirect evidence that there is in fact a time time condition and it's time that's a lot of value to me to just to really quick points i would like to make to the court is where you the united states supreme court is held the second circuit is held the third circuit is held this court is held the six circus held where you have an unremitting policy of a type at with in any with market power a tying claim is established you do not need to establish coercion and the reason is because that tying condition but in by regional vice presidents live nation even uses markets that policy in order to get other venues to lay out to market to manage them a policy has to be successful does it not well actually it does not if you could for instance if you look at jefferson parish is supreme court decision the court how that you absolutely do it does not have to be successful what is the conduct that is a tie is any competitive is imposing the tie and you have to distinguish between bundling where you say i'll sell you a i'll sell you be it their respective prices well the problem is if it is time product this this tiring theory it can  merge into a point where it prevents national companies or local companies for example from offering packages it doesn't yes it does because that is the danger of tying  theory in any trust is it simply prevents marketing of packages and that's in marketing of packages is done all the time no but that's that what you're just do it doesn't because that is bundling is what i just said that that's is saying are so you can promotion in venues here's my price for those two if you take them both or if you take them all a lower the price but what were you where you tranced were you transform from legitimate competition to any our shows in your venues unless we're managing it and we have that in the record you have one regional vice president said was incredulous saying something along the line of why would we ever put our tours in somebody else's allow you to market in those venues piers venues unless you could do a package of fifteen and even when the owner of that the venue that in the back one of the play objected live nation said you need to understand we need lose profits here but we'll get on down the line because ultimately people are going to be forced to do what we want to do and in fact that is what nickelback did by two thousand and nine it signed a three sixty degree deal with live nation and my concluding comments of the court at this point would be the judge the court below destroy resolve the cheerless is a fact it's certainly it's the we have evidence the record which the court decided not to believe and to accept live nation's evidence we have evidence it may questions decisions o credibility particularly as to professor l which simply cannot be made on to what a motion for summary judgment it relied on evidence that was not even in the record make conclusions for instance it found that it's more profitable for one or national tours rather than local tours it cites to live nations brief in support of that position and in fact that brit if that's not evidence and that brief didn't say that the end of the day we have put in substantial evidence of all of each of these issues under theories that even professor reader recognizes and we are entitled to a jury trial i won those issues thank you your hon whether there's exclusionary conduct and the argument just now focused on exclusionary conduct and with the court's permission i'd like to start there as well the principle argument is timing now we have to be careful and counsel was not to look at the various ties involved one is promotion that we would refuse promotion in order to coerce the artist to play it nice on literally no evidence in the record to that effect there is an e mail that says merryweather can't happen it's an internal e mail it's not it's not a communication to the other side there's not a single instance where live nation refused to promote an artist unless the artist nissan if there were we would have heard about it and we haven't and through you know extensive district court proceedings extensive briefing in this court a seventeen volume appendix there's no there's no evidence of that well let me take thought i want to start out with the local booking point and if the court will allow me and then get into the various vignettes counsel is raised so the the argument the dashes the tying completely is that artists are free to book locally book locally means that the artist will communicate with the venue and the promoter in the local area of the artist choice and there's still no proof of exclusionary conduct which is an essential element of all claims so if you can if you can book locally you can avoid any kind of  that booking locally is a viable option roughly half of license concerts are booked locally of the major point of term of the major artist performances in the d c baltimore area over forty percent were book locally that's from al haig so own figures so there's no question that this is a viable alternative to preclude any argument of timing and under this court's decisions the availability of that option the free availability of that option precludes any tying argument as a matter of law now even if we ignore this all a card option there were there was as as we've been talking for the last twenty minutes no evidence of coercion now i do want to address the specific instances that council raised first of all council said that what nine inch nails in two thousand and six that there's no evidence that they got increased compensation into return for performing at nissan completely wrong the document is volume sixteen of the appendix six four four six thru four eight it says in consideration of  playing at nissan we're raising your overall guarantees one hundred fifty thousand dollars absolutely unambiguous evidence john mayer the mayor crow tour in two thousand and six the  evidence is that they were given one hundred percent usually it's eighty five ninety ninety five in some cases live nation agreed as a result of the decision to play nissan to up the percentage of the gate to one hundred percent and that is specifically mentioned in volume five of the appendix fifteen thirty three this is not in the brief so i'm mentioning it now jason garners test make makes very clear and there's no contrary evidence there's no issue of fact here now all of the matters that the council races involve nothing more than active negotiation and it's very clear that negotiation is not time that's explained really well in the arena hovan camp treatise and it's been it's been the law for some time company's successful strategy and ones and one sense or another that can't be timing i mean the the the the problem i'm having here is that the timing theory that it's advanced here is precluding market behavior in market negotiations where all contracts and all negotiations are functions in one sense of what respective party can bring to the table and sometimes people bring to the table you know some heavy leverage but that may be because of a successful business strategy on their part or that may be because they have successful marketing couldn't of put it any better myself i completely agree with that i would like to talk briefly about the regressions the idea that the regressions prove coercion is is simply false  professor al haig testified to this effect himself he said that and an artist would be shown to be foreclosed in his regressions even if the artist hated merryweather and wanted to play nice on instead all the regressions do is track where the artist played the only other variable in the in the regressions and this is volume twelve of the appendix forty six twenty seven through thirty five the only other variable is artist's popularity there's nothing there to even purports to measure coersion or forcing or artist choice is just where artists played it doesn't prove coercion by any shape manner or form they can play at a particular venue for a multitude of reasons yes exactly did the professor x glued other competitive venues i was sort of surprised that he limited it to that years and it seems to me that there was plenty of evidence that artists might go to an arena one year after that or next year or even in the same year there was nothing that clearly defined amphitheaters as viable market definition absolutely right and judgements had that completely right your honor in rejecting that market definition and a great example that we've been talking about is nine inch nails so nine inch nails has played mary whether it's played nissan and in two thousand and seven it played the f relinquished your argument with respect to market because it seemed to me the district court was very impressed by the fact that this market opinion was sort of after the fact working backwards instead of looking at where the demand was and the nature of the demand interchangeability which would have included more than just amphitheaters so judge niemeyer if if i gave the impression that i'm not advancing the  market definition and market power arguments that was a misimpression we absolutely advance those they're covered extensively in the brief i just because the argument preceding me focused on the coercion issue i've been just been focusing hard to argue that that's anything other than than than outcome oriented i did want to mention they also allege exclusive dealing i judge d as your opinion in the calling against a dupont case really controls this they don't show the percentage of the market for close by exclusive dealing they don't even purport to professor l hague said he said it wasn't intended to be an absolute it's a sort of benchmark right but there has to be some evidence and there's none because professor al haig admits he didn't even try to calculate the foreclosure from mix of dealing only so if the current timing claim goes out the exclusive dealing claim necessarily goes with it and our expert professor klein you can accept this or not have pegged the foreclosure from exclusive dealing range when said zero in some years at a high of six percent in other years and that's clearly insufficient under any exclusive dealing analysis and the only way that professor all he could get around that is to combine the foreclosure with what he said was was foreclosure from tieing and insufficient arjay are pegged a minimum level of thirty four percent so no tying no exclusive deal only i do want to talk about what we call the refusal to deal claim all of the testimony that mr ha is is talking about goes to that claim will live nation renting out its venues to other promoters now we believe that the trunk ok smith is very clear that there's no obligation to share your property with rivals we also believe it's very clear i think it's undisputed on the record that that these plaintiffs never asked to use a live nation venue there is simply talking about requests by others and their own submission to the justice department which is in the record says that life nation does rent out its venues eight percent of the time so so even on multiple grounds t i want to start right in with market power so this case involves competition for the business of artists and the means of competition is payment of the guarantee and the percentage of the gross and it's a buying case so an exercise of market power here would mean reduced compensation for artists and reduced numbers of shows that's the reduction  not only is there no evidence to that effect but the plaintiffs have vigorously argued the opposite they've argued that live nation pays artists too much not too little they originally in fact claim predatory pricing and mr hurwitz in their industry expert baron still say that live nation over pace mr hurwitz in fact tried unsuccessfully this is the videotape for which there's a link on page one of our brief tried  successfully to get live nation to fix prices which live nation rejected because he felt that live nation was paying too much not too little so the lack of power over price is beyond dispute and the output story is the same plaintiff's consistent gripe is that there are too many concerts not too few so there is a complete lack of power or even an argument of power over price or output and that means no market power no matter how the markets aren't defined so but even so plaintiffs also failed to raise an issue for markets and and one venue's a judge the key was that professor o'hagan plaintiffs never focused on the real question cross the last of city of demand the question in this case is if there was a hypothetical monopol of nissan and mary whether combined because that's the market could that hypothetical monopolist reduce compensation to artists in a manner that would not lead artists to go to other venues such as the baltimore arena or the verizon center or wolf trap and the evidence on that from the plaintiffs is none but let's take a look at what  her what some self testify in its deposition he testified that even if nissan and merryweather stopped competing the competition from non ampitheater is would keep bidding prices competitive that's also to video clip and it's volume five of the appendix at fifteenth sixty four through sixty five that testimony gives us the hypothetical monopolist test that everyone agrees should be used to define the markets under pla market definition this hypothetical nissan merryweather cartel would be a complete monopolist there's your hypothetical monopolist with one hundred percent of the market the plaintiffs define but his testimony makes clear that this hypothetical monopolist could not reduce prices below competitive levels because and he says this flat out competition from non ampitheater venue's would keep the bidding competitive that precludes any the undisputed facts in the case show that the markets here are local every concert every concert case and there have been many it has been a lot of litigation in this field every case either assumes or finds that the relevant market is local a square holding of the here wagon case in the second circuit it's similar to supermarkets supermarkets like kroger and safeway all operate nationally but supermarket markets are local as  dozens of f t c cases and district court cases and all the way up to the supreme court to have held on a firm so every promoter operates locally gen u selections local radio advertising which is critical in looks and the concert business you need to know the d j s you need to know the right radio station so it's inherently local or it's clyde's rose and services absolutely your honor live nation has local offices throughout the country for precisely these reasons and a g which is the other national promoter also have local offices all over the place promotion is inherently a local business concessions are serve locally just sticks you have to get the truck there you have to unload the truck you have to set up the facilities a limited number of people are going to travel great distances to go to a single concert e s your honor and that's the holding of the here wagon case this is a little bit different because the customer is the artist not not the consumer but the analysis is largely the same and explains why the advertising for example is lo because what you what you're aiming at our our customers who will come to the concert without having to undergo an extraordinary amount of inconvenience or extraordinarily large trip to just wait for a concert to come to the area but they're not going to take long distance trips you know motel fees or of fees or whatever to attend a particular concert exactly exactly from washington is an area where people will go to a concert but they may not go up to pittsburgh or they may not go to atlanta seems to somehow relate to the demand created by the artist i'm not sure how you articulate that or whether that's true but it's intuitively it seems like there is a background demand created by the public and how far they will go to a concert i think that's that similarly point the judge wilkinson was making my time is expired can i have fifteen seconds just to address something in plaintiff's reply brief that that we haven't talked about that we we've been strict sometimes bothers me that any trust case is over some day they're brought in the nature of competition and yet their effect can be strongly anti competitive and mr hurwit is because alien was quote encroaching on their local turf well if you know if you have this idea of local everybody has their own local turf that's monopolistic in its own in its i leave town close up shop and let's stop bidding against each other to you let's let's achieve lower bid for the artist to play in the war about washington baltimore area so why isn't the driver in this from the beginning been and perhaps with the threat of any trustfully geisha and to get l a on out of the baltimore washington area so that i m p can have that area of that particular area all to itself and have rough pricing structures to suit itself to the detriment of of the artist involved and to the public and so what i'm wondering is if we buy off on what you're trying to say we just may be moving in the direction in a very and competitive direction in which larger companies like eliane are scared away by this kind of litigation from entering and being a part of all of the local market and we're turning local markets into more  markets because larger companies they don't necessarily snuff out competition they can be pro con penetrative and you know a big is not invariably bad sometimes big can be an indication all these cases come to us in this david and goliath past year but it's not it's just not that it's just not that simple and i guess the bottom line to my question is if we go with what you're saying the results seem to me to be quite the opposite of what the any trust laws want to achieve which is anti competitive you're on we are bringing a way and there's a number of responses to your question one is we're bringing traditional theories of the n h s liability of tying monopolization i would submit you could never say trying to enjoin contra conduct of the courts in the congress determined to be any competitive itself reducing competition secondly it almost use your question as exhibit a if i could to why this is a case that requires a jury trial because you have a perception of the record to live nation has promoted in fact a record establishes at least genuine issue hack i'm quoting from you or from from mr hurwitz now but what can i just what mr mr hurwitz when he was talking about too many shows he's talking about artists that were not even in this market artists who who he believes to do not generate enough popularity to appear in big venues that they should be going to theaters or to clubs that concern is not only shared it's a new record by mr harper it's but executives it live nation it's a completely side issue secondly thirdly actually live nation approached it wasn't actually live nation this was all well before these events live nation's predecessor clear channel tried to acquire i n p just like it's acquired numerous other independent entities two out the country live nation wanted that that that that that combination i am p rejected he has never shied away from price competition with with live nation what and what what plant what live nation sites is a distortion of an email to mr bell on the testimony on page fifty sixty of the record which on compete there are some artists who have significant popular sufficient popularity given the size of that market to appear at both venues and he says to live nation look why don't you think of the murray rather as gravy that you can at the artist can appear a nice on the artist can appear at live nation this whole idea that the email about live nation leaving town that all arose in a circumstance where live nation was proposing that mr hurwitz would run the combined entity and it said if you do that we think all the operational expenses should be against your size because we're quote leaving town so mr rip harmatz actually responds by saying leaving town if you want if you want to stay stay work if you don't want to leave town don't leave town but i'm not going to all the operational expenses so they're taking stuff out of context to give an impression and an argument we're in motion for summary judgment you can't put it back in the context that can only be done by a jury and just  one thing also if i could just leave the court with your question iraq goes through your opponent you want to just wrap it up real quickly it just on the whole idea of the empathy or market we have the court below it all goes to the artists popularity and there are certain artists at a stage of their career they need to be able to perform and ampitheater is can they supplement it with other venues yes but for tour to be successful they have to be in an