we believe is central to determination of this case and that is whether a firm can file a section two of the sherman act by paying true much for raw materials where the products that are then produced from those materials but i don't think it's the essential point there were there were really barriers to entry which were identified by the plaintiffs during trial and none of those three as a matter of law are sufficient the first in fact encroach greater capital costs there was no proof that the third their ear to entry that was identified by the plaintiffs trial was that there was a scarcity of raw materials but the record shows without question undisputed on both sides that there were in fact adequate raw materials available at all times to the plate it had it been able to afford it so for those reasons there is a matter of law are no barrier to entry in this case sufficient to sustain the jury verdict now on appeal we are referred to economies of scale as to which there is time to debate in both the case law on the literature about whether that is in fact it an acceptable barrier to entry at all but we don't need to worry about the legal issue here because it was not raised at trial there was no testimony about it no expert opinion about it so that think well supported in the case law that mere market share does not establish a basis for a finding of monopoly power in the absence of evidence from which a jury could properly conclude that that dominant position could be maintained but whether or not the court agrees with where houser on that ground it seems to me that the second issue which is where i want to turn and spend most of my attention on should be dispositive and that is the question of pricing the question that i suggested is central to this to this case we believe that the long following now ought to be clear that in the absence of proof the purchases the purchase price is paid or so high that the resulting products could not be sold at a profit and there is no dispute here that standard could not be met it was not met there was no dispute about that and there prices will draw over time you are going to have consumer welfare benefits whether it be in the form i think resupply which will lead to lower prices whether it be in the form of innovation and i think the question where the evidence in this case of consumer welfare it seems to me was ambiguous but that is not with all respect your honor the question we those reasons is that we need a rule which is that minister paul the second is that we do not want to run the risk of false positives the any trust laws  allocation of resources let me quote consumer welfare is maintained when economic resources are allocated to their best use that is a rule which can only be fulfilled exactly the same reasons economically on the buy side as on the sell side and that can only be implemented by the bright line rule for which we argue but how does the payment of higher prices supplies serve the interests and with the resource it leads to greater intrigue it leads to increased out what it will lead in the long run under ordinary circumstances fears that the any trust laws are concerned equally with the sell side and with the buy side that is if the any trust laws were only concerned with end prices to consumers we might say we need to look at that but that is not in fact just to the court case the any trust law can start with what happens to suppliers any trust laws have long said that it can be a per se offense to conspire to pay true low prices to sellers if we in fact are only concerned with the computer consumer side of this why would that be the law consumer welfare is something we are concerned with but it is a complex process and it is one in which the any trust laws care every bit as much i submit about salaries as they do about and users and for good reasons what we believe our markets we believe that in the long run not having people constrained by artificial rules and incredibly ambiguous rules if you look at the jury instruction in this case absolutely absolutely ok and is it your position that that and not being on the governing law it is absolutely our position and it is our position that that jury instruction was incorrect as a matter of law the collect your instruction that needed to be given it was a quick quote based jury instruction that is that the prices that were paid were such that the products could not be sold at a profit and group if you if you were to disagree with that there is no analog to brook group on the buy side and if you were to determine that the jury instruction and its use of the term necessary to pay a fair price by the competitor is an acceptable statement of the law then on that basis we would have lost as to that issue now that would not take care of the question of market power which i addressed in response to judge orders question a little bit ago but on that issue if you were to determine that there is no analog to the group standard and if you were to determine that the jury instruction adequately stated the law for the jury that we would not prevail on  issue we believe that we ought to prevail my life back to the report analysis we're really dealing here with three levels of markets right we deal with the market for law we deal with the market for the that you are likely to have long run increases in an output at the end use as well but again i think that that asks likely the wrong question i mean it ten it's tends to suggest that there is an obligation on the part of a defendant to charlotte wrap consumer prices are going to go down in the downstream market or actually did go down in the downstream market i think it's important to note by the way in this case we're talking about the facts of this case although we think that the rule here is a broader rule but if you're talking about the facts in this case the jury in fact we jump to the notion that way or hauser had any market power in a downstream market there was a competitive market there too to begin with so what you're likely to find over time is that there is greater stimulus for supply there is greater stimulus for patients and innovation on warehouses part in order to be able to produce more which will tend even in a competitive market over time to yield consumer benefits but again i don't think that the rule that we suggest needs i think what it needs is the same kind of analysis which court went through so painfully and for so many years the sell side that that is that the court in brook rupe looked at the fact that y can end up with situations in which you will in fact be letting somebody who was engaged in predation even successful predation get away with it to use those terms says what is moved far more important is that these schemes are strong rarely tried and so unlikely to be successful and the danger of false positives is so high that we are going to impose a bright line rule it's a rule that when you're on the district court of course and review tells both on the cell side you thought was the appropriate rule at the time read brothers which we haven't discussed was decided  followed why in the wake of english there was still a debate going on in the ninth circuit but in footnote five in read brothers this court back then said that on the cell side and the buy side were going to apply t course cites two different cell site precedence because of course was then thought to be by that handle the controlling law in this circuit but it was was of course disavowed by the supreme court when it got to book group but if one takes the logic of read brothers and the logic i believe of the economic literature and the logic of why we ought to prevail in this case and simply applies it here that way or hauser is entitled to reversal it seems to me that we ought not to have a rule of law which makes the legality of a competitor's prices turn upon the efficiency or lack of additions to its competitors as i said when i began that strikes me as absolutely antithetical to what we are trying to accomplish in the n t trust  concerned with supply they are concerned with downstream demand they are concerned with buyers and sellers but they are not concerned with inefficient competit care in fact we encourage more efficient competitors to succeed and was sufficient competitors to fall by the wayside we are saying that as long as there is nothing that as a matter of  predation that is considered to be a good thing and the trust wise in saying exclusion describes something that occurs it doesn't tell us anything about whether that exclusion is or should be permissibly held to be illegal and our position here is that you simply can't take evidence of somebody by any imports at a price which was not  logic of what the anti trust laws it seems to me are and are said to be about the supreme court of the united states has been i think about as clear as it can be not only in brook rupe but very recently in train cog in being very concerned about it ministry building and being very concerned about false positives and that's exactly what we have it seems to me in this case reasons to affirm let me state them briefly first there is no justification for the novel and unprecedented expansion of brooke group that weyerhaeuser seeks on appeal second read brothers which is directly on point both in terms of the marketplace another in a lastic logged market and in terms of the anti competitive tactics deployed should not be overruled and third there are two categories of anti competitive conduct the factual suspicion of which weyerhaeuser did not challenge in its j m oh well at the end of the case either one of which i based entirely on symmetry but it is completely disconnected from the economic unique economics that prevailed in an inelastic resource based input market like alter sawlogs behavior was raising prices in an input market there is no potential for chilling output for the benefit of consumer in this study the other pillar or basis for the reasoning in brook route was the ca development considerable case development as well as mountains of scholarly comments and commentary stated suggested very strongly that predatory pricing in an output context is rarely tried and rarely successful here we have a very unique marketplace and inelastic log market and if you look at monopsony the few monopsony cases that there are unlike predatory pricing output cases where there legion and lots of commentary we only have a few monopsony cases and if one looks at those i'm talking about american tobacco case swain and other ninth circuit case involving the juice the orange found we are not talking your honor about the retail price and competition among the producers of bubble go which would benefit the consumer in the form of retail price cut this is an inelastic natural resource that takes thirty years to mature if the monopsony is a share of the log market is not arrested future supplies will fall because land owners will fear the lack of a competitive block market in the future as a result all there will not be replanted to following its harvest all their log supplies will therefore fall in quick prices will correspondingly rise as well and output prices will follow and the consumer is ultimately harmed through the monopsony as they should of an inelastic market like this one without this type of case and the case that followed  there would have been every real prospect that alder lumber would follow the path of cherry longer which has risen in price consistent with its growing scarcity let me turn to read brothers for a few the importance in section two cases of a fact specific industry sensitive approach that is the tune to the particular structure and circumstances of the industry at issue reed brothers is another log market case and it is on point in two very significant ways first it also included or involved an inelastic log market now why do i say in there it was inelastic by that i mean that rising prices one of the premises of the weyerhaeuser argument in its brief rising prices for the log inputs is going to increase the supply of those inputs not so inelastic market and that's what happened in reed brothers as here in reed brothers the entire market was the soft wood logs from the tongass national forest which are constrained by stri requirements limiting the annual supply here to is acknowledged by all sides that all there is likewise inelastic weyerhaeuser documents characterized it as at least seventy percent inelastic because it's so called come along species it's a minor species mixed in with the much more predominant softwoods west of the cascades in oregon washington and british columbia and therefore it comes along out of the woods when those exclusionary tactics and leaves a lot of pricing aside for the moment to that existed in greed brothers and also were presented in the evidence below were for closure of the market by acquiring mightily i think to shift the emphasis on appeal and characterize this as a pricing case only when in fact there was much more to it i tried the case below i have trouble recognizing the log pricing we have knowledge in every if that the instruction was incomplete but if you look at the entirety of the instructions and the goal here in jury instructions is to get instructions that are substantially correct if you look at the contentions in this case is that the defendant purchased more logs and needed or paid a higher price than necessary were houser likes to end the statement there but it goes on in order to prevent the plaintiff strome of painting the logs they needed at a fair price if you find this to be true you may regard it as an anti competitive act up above in the prior two paragraphs on the page that this is drawn from you see the kinds of principles that  governed definitions of anti competitive or exclusionary behavior having the effect of frustrating or impairing the efforts of firms to compete for customers lacks a valid business purpose under reasonably or unnecessarily impedes the efforts of other firms to compete for raw materials on balance yes if you accept book book group it was harmless error because we have these two other categories of fully accept for a group and i have some other reasons i'll get into in a minute as to why brooke group should not be extended in this novel and unprecedented fact trying to understand where we were in terms of our argument is that your position counsel here did that try to do this and what pages it is we had fifteen allegations of and i competitive conduct in our complaint only one of those categories was locked pricing the other fourteen fell into seven different categories and two of them were the over buying and and of the acquisition of competitors which were unchallenged by proposition that arc our entire case was a log pricing legal theory in fact we had two legal theories in this case under section two of the sherman act monopolization and attempted monopolization and we had fifteen different specifications or contentions of and i competitive conduct that supported each of those theories the stance for the proposition that a general verdict will not be upheld unless all of the legal case you might have six or eight or whatever number of allegations or contentions of negligent conduct that allegedly caused a personal injury in a negligence case if you have one of those allegations of negligent conduct that is unchallenged at the j m a well at the end of the case and it is legally sufficient that alone is enough to sustain the verdict here we have the same situation we had fifteen different allegations two of them hotly they denied it there's plenty of evidence to show that the jury could have sat so found that over vine was done deliberately to keep logs away from raw sentiments and just like the negligence case we have two items where one of these tactics the acquisition of competitors did very significantly for close a big part of the log market to ross simmons and again i start with re brothers which teaches that saying that show of tactics of anti competitive conduct they also focus on control through the timber supply they control that market one of the best examples was warehouses acquisition in two thousand the last in the last year before ross simmons exited the market as the long time number two they acquired a company called coast known hardwoods in british columbia with five fifteen to twenty year exclusive licenses to virtually all of the public or the vast majority of the of the of the public timber supply for all there in british columbia and that was a mill that has these long term cost supply in the region weyerhaeuser got ghost mountain got those licenses and this person testified that it was not possible to develop a mill of a similar size in the whole of british columbia because of the foreclosure that anti competitive conduct can come into many different forms and just too dependent upon context for any court or commentator ever to have a numerated all the varieties judge pan or noted below the supreme court's admonition that there are quote too many possible variations in and i trust of blindly a fly black letter formula and the bright line theoretical distinction weyerhaeuser demands must give way to the realities of the marketplace one of our themes that trial was with great responsibility a monopolist or with great power i'm sorry a monopolist shoulders great responsibility this point was put more eloquently in a quote from justice carso cardozo that was cited by the sort of third circuit in look pages a court that rejected this saying pricing only of characterization to a bundle discount case and refused to extend book group to a new context what justice cardozo said you know that quote was carries with it an opportunity for abuse that is not to be ignored when the opportunity is proved to have been used in the past read brothers in one thousand eighty three a step wished that market power in a limited regional you know lastic log market can be abused the ross simmons jury below found some of the same tactics used to c you like to make three point very briefly first has to do with the so called other first thing i would say is that we discuss why the other assets are not legally sufficient that is sufficient as a matter of law there has been no correct that yes you find that the jury instruction was incorrect on the pricing point then reversal necessarily follows but there's another more important reason why that is true and that is that the damage case here  the only damage theory that was put forward had to do with overpayment for a lot that's exactly the situation that this court confronted in the coastal abstract case which is the case from which plaintiff relies you will find that one seventy three federal for at seven twenty nine where just this situation was presented the second thing i would talk would say is that the jury instruction itself was plainly incorrect if you listen to mr headland argument here he talks about recoupment he talks about in the last he talked about it like that if you look at the jury instruction if inelasticity is somehow relevant which we don't think it is that i would expect fully make is that unless this court believes about your colleagues of an earlier era in re brothers were wrong they applied precisely the analysis that we urge here they just applied it at a different state of the law we believe they got it right we believe that these arguments that you heard from mr hagel and about the need to expansively interpret section two of the sherman act are not