things unilateral action all denials of the role of jury the jury and the rule of reason the only independent action here was dealing with a c s in florida in the st place changed its policy that is selling its product wherever possible in response to threats from white and demand for acquiescence by white reef discusses the rocket land but why cut claims in its own brief the twenty five meadowbrook was always planning to supply a c s i'm just one job in florida my answer is that they can tell to the so i just want to take that one out of the equation right away with respect to the other claims here's my concern what is your best abdon for there having been an agreement between white cap and me least what they said was they thought that white cat had built up goodwill for meadow burke in the state of florida and they don't want to lose meadow burps if they don't want to lose white caps business and more importantly they were already backed up by a month in their engineering department they didn't know how much more work they could actually make in florida and so so from just from the you point of meadow burke where is the agreement on their on their park right meadow burkett already made the decision to supply a c s in florida or were no exclusive territories and they were actively supplying in florida and it was only literally a matter of days before they completely turned around the policy in response to the threats they go to the white cap demands the sit down  s that not true they can change their mind independent they could change their mind independently if there hadn't been the threats in the st place  the director of tilt he made the decision to open a c s he made the decision to close a c s he's the one who explained it to whitecap and he's the one who explained it correct so i recall the records of most of them testified he was the lead man on those decisions that and that one day and the key here is as you said your honor called the whether it tends to show something other than independent action and so it's not i don't have to get to a it's more likely than not that there was a conspiracy i just have to show that there is some evidence that tends to show that there was not independent action if they have a dense was actually in a quick pele's you lose is that not true though i there must be some evidence that tends to exclude the possibility of independent action i could i could come to court and say look i've been terminated and i've got a hunch i have evidence here  wasn't acting on it i've got an e mail i've got the demand for a sit down i've got whitecap giving reassurance all in the context the metaphor of just having decided to supply a c s in florida each each of those pieces of evidence tends to exclude the possibility of independent action in four years the parties of everybody reasonably the decisions will keep going one way or the district court we've already rolled the dice six or seven times not st order to keep coming up  more powerful than ever the concern is that this is better this case is better to be reassigned for a fresh start there are already there are still other pending motions before the court and it would be an opportunity for a new judge to make a fresh start and for the parties to appreciate that there is a judge  that's going to take a fresh look at it going so going back to i want to go back to the concerted action issue so i do think it's very critical but the issue with dealer termination in the reason for the bond stance a rule in the st place was the idea that people could come to court based on a hunch or a guess that maybe something is afoot but here there's we're not guessing we've got we've got a smoking gun and this long case tells us all the nile's after the weight against the circumstantial evidence and in that case in the long there was no evidence that the distributor and even communicated with the manufacturer about terminations of the rival distributor before that distributor was terminated none none that the case went went to the jury because we don't take all denials on their face  they have to be weighed against the circumstantial evidence circumstantial evidence here the strong e mails and the testimony i want to talk about one more point and i was the role of the jury and rule of reason right so my reason for pause is that the obviously it's a state law claim there's an issue of interference and  decision and this was a concerted action so i don't think it matters in this case  supply for purposes of the briefing and this will argument i'm going to refer to them as white cat which is the name of the which they do business the pleasure before you today i'm not going to take much of the court's time because i think the court understands the state of the law and the record in this case i did want to make three points first as to the last concerted action under the sherman act i think the court has it exactly right if the evidence is the court must find that there was no act there was no concerted action evidence that is as consistent with unilateral action as with concerted action has to be interpreted as insufficient to support an inference of an agreement that's the point on the law the nd point on the facts i'd like to just go through three events the three critical events in the relationships between met over on the one hand and its distributors a c s and white cat on the other hand the st event occurred on july th two thousand and sixteen that's the date of the e mail the so called smoking gun e mail at which point white cap learned that meadow brook was supplying a c s on a single project in florida and inquired as to why that was a break in precedent on that same day july th there was after that e mail a very brief telephone conversation between doug bartle whitecaps and mike woolston home who was the account manager for white cap at meadow park and the substance of the undisputed testimony says the substance of that brief phone call was let's get together to understand what meadow work is doing and flo home all that metal part that a decision was made not to support a c s in florida beyond that single initial project decision was made on on or about that day it was reported up and down the chain of command from doug crawford to his c e o up and down to his people in florida mr arnett and mr walston and the evidence is under speed on that that's july th the next park representatives met separately with whitecaps and with a c s and informed them of the unilateral decision that meadow brook had made about what it was going to do in florida trust claims and it dooms the tortious interference client because if if if white cap didn't violate the sherman act in florida what in the world did it do it competed it is privilege to compete in florida that is not a basis for a tortious interference call and this is the rd point your honor apart from that there are independent reasons there is no evidence that anybody other than doug crawford decided what meadowbrook was going to do in florida and he testified without contradiction and subject to cross examination that he hadn't been pressured by anybody at white cap or anywhere else burke and a c s on some kind of ongoing relationship in florida almost was there had been one project that it all what happened was there had been one project all whitecap did was say what's going on in florida and they were told there wouldn't be anything else there's no evidence the white cat knew there'd been some relationship established to cover more than this single project and white cat cannot tortuously interfere with a relationship that it doesn't know like it's a problem i mean what are your thoughts on that number one we did move for summary judgment on that claim on the basis of no evidence of any competitive effect plenty of evidence of specific intent if you look at even a c s is initial briefing page thirty five where they raised the argument about a possible violation of school fifty six f a mere three pages later on page thirty eight they say a c s presented direct evidence that white caps intended to keep its rival from competing in florida and it goes on and on and on with the evidence that was presented a was it could be ruled on here in this court there was evidence of intent and that that is  no your honor it's not because the section to claim would tend to monopolize attempted monopolization requires concerted action it requires evidence of any competitive and the court found that those two independent bases justified summary judgment so it's not a problem and the court in light of the evidence that was clearly presented to the court court could have ruled on this additional grounds that there was no evidence of specific intent the court cannot ignore the evidence that must account for the evidence that suggests that the parties acted in concert here were not operating in a vacuum we know that meadow burke has decided to open up a c s and win and life the court has already said we know that meadow burke acted in response to the call from bartel and the threat from bartel white  it's just a matter of creating plausible deniability any distributor can make any threats to make any demands the manufacturer goes back to have their own meeting they say well we've made our own independent decision we're going to call it off the rival distributor but that's just delayed ball denial and that's not enough under the act i trust laws and i would otherwise we would got antitrust law specifically conspiracy law generally take the example of the a d m price fixing case i worked on at the justice department the f b i catches rival sales executives drawing up volume allocations on video  at the ritz carlton down the street from the courthouse but let's say the c e o claims he had the final decision on product production volumes for his company and he made that decision in the pendant like well disposed to tell that to the jury we already have evidence that that you know that tends to exclude the possibility of independent action and that's the case here as well again meadow birth didn't just simply change its mind it changed its mind after being contacted by a white cat yes the biggest distributor was seventy five percent of the market in florida had threatened to pull their purchases was that was it rational for meto birth to change its mind was it self interest to change its min yes maybe so because it was being threatened by white cat that's the whole point it's no longer and it's not independent action at all i also wan but prices were much higher in florida are much higher in florida as well as the potential for genuine and adverse impacts like have seventy five percent of the market at the time now labor under mclean for section t harm is clear and the reason for it is clear or at least there's enough to take it to a jury is not speculating on the role of white cat in the terminations of a c s in florida there is evidence that tends to exclude the