refusing or failing to instruct the jury on the functional availability if ounces we refer to it as and primarily the issue of whether or not functional availability requires equal treatment of competing purchasers in the way that the objectives are set to get the favored pricing this district court got it right and denying chrysler's motion to dismiss and then denying christ there's a motion for summary judgment based on the function shunt functional availability defense and both of those it said that the law requires even handed treatment however when it came time to instruct the jury the district court refused stevens creaks proposed instruction which would have informed the jury of that fact and instead instructed the jury simply that in order to there to be functional that first of all that stevens creek had to prove that the incentives at issue were not functionally available to it and that to do that it had to show that they were not practically attainable through reasonable commercial means with no mention of the even handed enforcement who believe this is counter to just about every published decision that has defined what functional availability is why they use different terms whether it's equally available even handed treatment do not discriminate and so forth or are applied in a reasonably equivalent manner they all include the definition the standard of even and a treatment well can i just ask you to help me understand what you see as the delta between your proposed instruction and the instruction that was given because i guess i'm looking i think at your proposed instruction and the second part of it does track essentially what was given ultimately right practically available to stevens creek had it engage in commercial writing that's the same as what was given we would have asked we would a we i propose instruction which would inform the jury which we believe is a crock statement of law that in order for favored price in our incentives in this case to be functionally available they most must both be made available  an even handed manner and they must be practically attainable yes ok i'm looking at your instruction while i was asking was you just want added basically that first little clause that says it has to be administered in a reasonably even handed and handed right and i  guess my question to you is what does that even add to the second part of the instruction which which does track what was given because i don't see there being any cases where a jury would say you know that these  weren't practically available had your client engaged and commercially reasonable efforts blah blah but they nonetheless would have come out differently had that additional language been added that's i just need to see i need your help in seeing what's there the delta between even and a treatment  set object is for fremont the new competitive dealer that came into the market and was fourteen and i just cut you off i was actually asking it in an abstract sense ok just conceptually i don't understand to me they the second part of that instruction fully encompasses the kinds of cases that would we would be concerned about with a reasonably even handed so i'm not even talking about the facts of this case i just try i would respectfully disagree that practical attainability and compass is even handed treatment or vice versa well we know that even handed doesn't mean it has to be exactly the same for everybody right you agree with that and i'm sure i soon that's why the district court was reluctant to give that because it might mislead the jury into thinking that that has to be the same line across the board for everyone and that's not what the law requires no is a noun a treatment requires that each competing purchaser have more or less and equal opportunity exactly so that's what i'm asking conceptually how is it that the second part of that instruction doesn't capture all of those cases just forget about the facts of this case just help me understand conceptually what did it what was it that you guys were trying to accomplish because as we attempted to explain in our brave if one competitor knows they're going to get the favored pricing and because its objectives are set a level that there's no question it's going to to hit them based on his past sales or x expected sales and another competitor in this case matthew hasn't sat on a basis that doesn't reflect the current market it doesn't reflect the current then it would not be practically available right that the instruction i'm trying to just i don't understand your argument is what i'm trying to tell you right i think it just makes no sense to me i'm just trying to understand what is it what group of cases that would not be captured by the second part would somehow be captured by the first part in a way that's consistent with what we know the law says well any competitor i suppose can hit a certain amount of cells if they give cars away in this case a object of of the  competitors was to make as many cells they could but still be profitable and doing that and obviously in doing that is a question of what it when they make us there in a month when they're selling cars in competition with one another the question is what is my cost basis here fremont because its objectives were much lower than what i was selling and continuing throughout the country period  knew that it was going to get at least you know equivalent of seven hundred fifty dollars a month which could be used to apply and competition for sales were needed to compete on price with another dealer matthew did not have that luxury and so when it went and two they could start by trying to compete but when it became clear it was not going to get that pot of money at the end of the month the seven hundred  fifty dollars per vehicle sold at some point i just had to it's what's referred to in the record as a reservation price is the price below which he did or would not go in order to make a sale and at some point it just its reservation price and couldn't make the sale and therefore it lost sales and could not make the objective ok i mean did you i guess i'm just i feel like we're not communicating because i just i was trying to tell you this is the third time that i'm not interested in the facts of this case i'm still just trying to understand at a conceptual helpful what you think was going to be accomplished by the language you why if you don't have an answer to that that's fine but i just you keep repeating like you either so they don't have to set the same threshold for us for the other deal or right i think the functional availability requires a manufacturer to set the threshold equal to the dealer is not across the board the same but proportionate to their expected sales of formula if the dealership applies a formula at the actual numbers that are plugged in to that form they don't have to be the same if you agree with that's true i agree with that and the formula is the same for all dealers and the formula does not discriminate against one dealer because it applies different market conditions and the i and a different market condition and that's what happened in this case i'm so i keep going back to this case but i think it helps illustrate is that you have a formula is based on historic sales but what if there are no history that was the problem here if there were no historic sales so the formulae had to be adjusted to account for the fact that there were no historic sales how is that not even the end it before i had to be a job but chrysler should have done a fair and what the business california business owner in fact recommended to christ there but they declined to do it was to adjust stephen's critics objectives to account for the fact that it no longer was in a market without a dealer fourteen miles away that everyone agrees was going to take a significant number of sales away from what stevens  dealers because the formula remained the same for all of the existing dealers so the question was how to how do we adjust the form of the for this new entrant so that the answer that you would just the entrant into the formula now well chrysler is planning potential for the new entrant and we don't dispute that and nor do we actually say that chrysler was then i required to use planning potential for each dealer that existed what we are saying is that chrysler needed to recognize that when fremont came in on the historic cells that they were using to set matthew's objectives were no longer valid because they those historic cells were made in a market where there was less competition but that's not even hand the objectives for all the others based upon but affected the new entrant have on their expected sales and reduce them downward proportionally and we just believe that matthew enterprise as the business center egg indicated when they asked for that adjustment that matthew was going to be the one impacted the most because it was the largest selling dealer at that time and was as close as a close closest  to the new entrant and had sold a significant number of vehicles into that area on it so were we weren't asking for any special treatment we were just saying the formula needs to be adjusted  is a significant change in market conditions and to be even handed you need to make that change why doesn't the practical availability prong the object as an even handed manner it could have competed against fremont without having to sell at a loss so we heard all of this the jury heard all of this and had an instruction as to whether or not commercial whether or not it was practically available and made its ruling so but i did the jury decision just reject your theory of what chrysler should have done because the jury was never  instructed that the requirement of an even handed treatment as part of functional availability if it had it could have easily found that they were not functionally available because the evidence was clear that the way that the objections were e thank you thank you decision in two thousand and six by justice ginsburg where she said that the robinson patman act singles no large departure from the broader purposes of the antitrust laws and courts should resist any interpretations that are geared more towards the protection of competitors than of competition and that principle decides this case because what stevens creek is seeking here is protection for itself not protection for competition there is no question here that what chrysler tried to do in this case was to facilitate entry and to have a growth incentive program that is indisputable it encourages dealers to strive to sell more cars to increase output that is pro competitive the facts here that their jury found was that stevens creek acted irrationally with what it did what it did the facts are very simple when fremont entered into the marketplace it lowered prices along with the five five other or four other surrounding dealers at lower prices and it made its incentives the owner of stevens creek matthews a hero he did not like the reduced margins so he fired his star general manager and he proceeded to increase prices he increased prices by fourteen hundred dollars per car his prices were two thousand dollars per car more than the other surrounding  dealers to five other surrounding dealers fremont and the four others it was on that basis that stevens creek decided not to affect effectively decided not to participate in our program because if you're going to charge two thousand dollars more per car you're going to sell less cars people are going to walk out of your dealership without a deal and you're not going to earn your incentives but we showed it and it was undisputed evidence we showed that that decision was irrational stevens creek would have made more money had a price at the level that its general manager had priced at had just lowered the prices by five hundred dollars it would have made more money and sold more cars and it would have earned it incentives so if they had lowered its price along with all the other dealers just like our incentive program was designed to do seems we would have made more money and it would have earned its incentives council specifically a policy council take issue with the jury concept of commercial availability really governs what this court what the defense and what the statute is designed to ensure because what this court has to do is ask to make sure whatever will it has for functional availability is enough to make sure that it doesn't capture all these other approach everything let me every incentive program in america owes its existence the functional availability of defense if this court were to adopt a standard that is that is difficult for manufacturers to meet pro competitive programs then that's a problem the concept of commercial reasonable miss which is what the court adopted if if if the deal if the dealer can achieve the incentive by acting commercially reasonable that satisfies the purposes of the act the purposes of the defense because reasonable dealers would have earned the incentive that is there would be no price discrimination among all reasonably acting dealers they would have written exactly the same check to chrysler for each car if they acted reasonably there would be no price discrimination that negates the element of price discrimination which is the foundation one of the two foundations for the functional availability defense can i ask you about the smith case from yes  is from but anyway the court there said that the like this something like this incentive has to be functionally available to all participants on an equal basis and i think that's obviously that's what they place greatest weight on is the on on on an equal basis and they say that that's all they were trying to get the district court to tell the jury and why was the instruction that was given sufficient to capture that concept the instruction is sufficient in this case  because the amount the full amount of the discount was available to stevens creek if it acted reasonably so the full amount of the discount was in fact available if you look at the cases that talk about you know what it is only available that's his point so it was not equally available because the formula failed to take into account market conditions that changed the access to the program so the concept that  circumstances change that happens all the time manufacturers need to have some level of discretion to determine when to when and where to accept to make those changes if we if we were to adopt stephen's creaks rule in this case that we couldn't make exceptions we couldn't give stevens creek the exception it wants because we'd have to then give it to normandy into putting them to all these other dealers in the area and we would have a nine even handed program what smith was talking about was it was saying look if you have a formula that applies in that case it just apply to everybody if you have a formula then the next question is can all the dealers achieve the discount and that is an attainable of the issue and all of the functional availability cases that you look at all focus on actually and it is mostly subsumed within it and that if it is in fact attainable then it is completely subsumed there are some cases where it is very difficult to achieve the incentive but the formula is in fact even handed and courts will say because it's even handed it's ok that it's really difficult to achieve so even handedness can be a sufficient condition to uphold the program but it's not a necessary condition what is necessary is that the full amount of the discount be achievable by the dealers using commercially reasonable efforts that is the that is actually the name of the defense is it available to the dealers and it is the purpose why you know that if you look at the purpose of the functional veil ability doctrine that is what negates the two elements competitive injury injury to consumers injury to the retail competition if commercially reasonable dealers can achieve the incentive there's no injury to competition and there's no price discrimination because dealers who act reasonably would actually pay the same price for each and every car the only way that is is somehow you know potentially you know unfair would be if this were a dealer protections that you if you had two different formulas if you had two different formulas some say well that's unfair and then we'd have to litigate one dealer saying you have to give a discount in another dealer's and you can't give the discount because if you give that discount you've got to give it to me and if you give it to me got to give it to this other person or to that other person and makes these discounts unworkable the reality is we had a growth incentive program and we needed to use prior year sales because otherwise it's not a growth incentive program and we needed a way to bring fremont into the program we didn't just give them zeroes for prior year sales and automatically give them the incentives which would be applying exactly the same formula we used a proxy for prior year sales until they develop sales history that is perfectly a reasonable approach and if if stevens creek had difficulty reaching it if they couldn't reach its own objectives using commercially reasonable efforts that would be a different case but here the jury found that stevens creek acted irrationally by raising prices by two thousand dollars a car in most of the other dealers they were earning three hundred dollars a car three hundred dollars car stephen street was earning twenty four hundred dollars a car obviously it's not going to earn its incentives if it's going to charge eight times what in profits what the other dealers  mr orme presented some stis statistics about the difference between fremont's objectives in stephen's creaks objectives but it heard undisputed evidence that we presented and their expert did not dispute that stevens creek would have earned a million dollars more putting aside the incentives had it not raised its of its prices and then when you add the incentives on top of it i mean this is undisputed evidence and i think that's the problem i have and i enjoy your argument it makes makes good sense but how can we say the jury found as a factual matter that even though the it's the only evidence in their injury has the right and frequent sometimes do just no i'm not going to consider that so how do we know w what it was not a general jordan jury verdict it was not verdict for the defense there was it when element by element and when it came to price discrimination which built in functional availability using the words commercial commercially reasonableness it ruled in whether even had it's needs to be included we also believe that for the reasons the court sort of suggested that if there was an obligation to use the words even handed in the jury instruction that would have been harmless because what stevens creek is seeking is exceptions to a formulaic process at seeking an individual exception that would benefit it which would then create problems for us because then we'd have to give exceptions to all these other dealers now stevens creek has a couple of proposals or says well we should use something called expected sales which is just a made up number that made up there's nothing called expected sales that chrysler uses they had something that their expert presented called a gravity model that nobody else uses to base expected sales that if we had then used some some sort of different formula or whatever it would not have been a growth incentive program and would have made the program even less even handed all we did was have a proxy for fremont  to get them into the program and that proxies actually not even challenge by stevens creek you object to the profit instruction and it contained the language even handed and we did it we published the basis of the objection so the basis of our objection was to exactly ones that i raised here number one first we said that commercial it was it was in either or either it had to be evenhanded or it had to be practically attainable that was argument number one  argument number two was that there wasn't really evidence that that would support an even handedness instruction because what stevens creek was seeking was to make the program less evenhanded and that it was not in fact challenging the use  proxy for fremont argued that inclusion of that language my mislead the jury or confuse the jury did you make that argument i don't believe we used the words confusion i mean it was conducted in chambers i don't believe we use the word confusion ok that brings us now to the questions of burden of proof in our in our position in our view the texas v hasbrouck decision resolves that question the model instructions resolves that question they did it with respect to functional discount defense which is basically the same as functional availability on the minds of same elements of the prima facie case so if you there's any questions on that i'd be happy to answer that and then finally as to just offer to pay in for free give them right for free that would be outside the act entirely we did less than that we had a program that offered some rent assistance to induce entry into the marketplace and we scaled back and a declining amount over three years to court concluded that under this court's decision in england that that was a commencement of business allowance because it was entered into even before san leandro entered the market and it was less than the value of the lease hold  under that basis under england it is outside the scope of the act because the act requires that there has a reasonably contemporaneous requirement you look at the time of contracting and the ninth circuit held in england that where you have a commencement of business  allowance that means a favorite in disfavor dealers have to have commenced business at reasonably contemporaneous times and that was not the case here you know where the opposing counsel didn't address this issue during argument  neither chrysler nor the district court can town that equal even handed treatment and practical attainability are sassoon with each other they both they both recognize them as being in separate elements both of them take the position which is unsupported by a decision that it can be one or the other in fact it's refuted by the initial functional availability case which was morton salt which indicated that even though the favored pricing was  equally available to all it was not practically attainable and vice versa there are courts who have held that even though they may have been practically attainable the fact that the program set up in a way that it discriminates against certain purchasers is sufficient to rule out functional invalid billet and we cite those in page four of our brief including column out rule rees and mueller of the trade commission which is a seven circuit case  the issue of whether there's a lot of factual statements that mr call us made that i would dispute as to and obviously the evidence in this trial is