trust case the court should be aware and i'm sure of it is of the tremendous impact the decision in this case will have should the court hold that an agreement among horizontal competitors doctors in this case professionals to jointly negotiate to collectively bargain with payers is not per se lawful other words the district court held that such an agreement electively bargain among doctors was per se lawful conditions in their preferred provider agreement and if those payers those health maintenance organizations did not agree to their v agreed to accomplish a restraint of trade by agreeing to collectively bargain with health maintenance organizations on economic terms and conditions under the preferred provider doctors and let me be clear i believe that doctors can get together it's too late in the day the say the horizontal competitors cannot talk to one another about some x aspects of business of course they can and judge kozinski points that out in the often case but when you are saying that they can go beyond informing the payer let's stay with what the medical association the american medical association says in this case is pro competitive about the behavior involved when you inform the payer about his terms and conditions of his p p a and you go back to your people and you tell them about the terms and conditions of the p you are making information more symmetrical and you are doing something that is pro competitive but when you go beyond that you will when you go up to the paper and say as they did clearly with h m s say and attempted to do with us there is this provision which we don't like and we want you to change that is exactly what i believe the court in maricopa county medical federation held was a per se violation because it was an how many container for our you can put on this year that's not really a non economic term it's very economic to the payer and from the point of view of the health maintenance organization it is trying to solve this problem pointed out by the a m a this asymmetry of information that exists by as it were policing on behalf of the patients the charges that are made by a doctor that's their role they're managing health care costs and some of these provisions not all of them are directly on for example the right to arbitrate a decision another example indemnity to the do provision well as any lawyer can tell you it's a non economic term to talk about one's professional liability insurance but when it comes time to pay the premium it's not so non economic so if the health care maintenance organization wants an indemnity from the darker for malpractise claims if it suited wants to call back on the doctor to say you defend this action and the coalition is bargaining that with the health maintenance organization then constituted officers of the h m s a the evidence in the record is that we gave the court the minutes of the h m s a any all meeting and we put in the record of the declaration of john won john one who for twenty five years was the executive director of the a jam they went through in his declaration our executive committee looked at what they were doing and decided that they would go up with a head and join the ha and refused to i'm not saying judge and i want to make it very clear i'm not saying this of course is a violation i was ready to put on a full rule of reason but made an agreement that we could put this in front of the district court because their position was it was per se law and the good district court judge blocked that lock stock and barrel and she held in this opinion that it was personal lawful force all competitors doctors in this case to agree jointly negotiate that's what they agreed to do now they point out the i can't pronounce the name the shock our case judge and they say well there is no restraint we know from standard oil any agreement any agreement is a restraint of trade it's only those that are unreasonable agreements or here there was an agreement among the docs there was an agreement to collectively bargain with health maintenance organizations over terms and conditions in the preferred provider agreement and i go back to what i started out saying if you hold that that's per se law in the eleven western states alaska and hawaii we're going to have a situation where dr groups are going in effect act as harry bridges of the aisle w did with the p m a and bargain with them now do they have the right to strike the relevant market and they say a change is a bad guy don't do business with him and then we cannot sign up anymore provide that's a situation where they are as in the pennsylvania dental association sometimes the rule of reason can be applied with the queen and that one need not always have a trial under the rule of reason then the question becomes whether there is anything in this situations for example vertical restraint situations we draw a very clear line in the wall between price fixing price setting price of greenland's ice negotiations in the one hand and non crisis terms which here suggesting that there is a right to appeal within your procedures and we would like to discuss those with you that's all that and nothing more there are a number of other non presumably it also is correct it's ok to talk about some of them that's correct but it's pretty clear that you can't cross over the line so why is it so clear here that the line wasn't crossed over particularly with respect to the impact in reality over the communications of members in terms of their refusing to sign or anything else by going out specifically if you are honest questions the paragraph that i just refer to a doctor for a provision of service what they are concerns about the safeguards in the mechanism which set price on the one hand and concerns about the absence of you represent sixty percent of the positions in hawaii and you have a lot of influence over them there is an implied threat of withdraw learned refusing to deal or something back at it they thought maybe have something to do with prices another one about prices he had mentioned which is that the new any price schedules which the insurer wants to put into effect should wait for thirty days that was proposed to describe mechanism at all and there's no suggestion there is there no resolution is passed there was no effort to even find out that the association who had signed a contract with quite among the association members there is no evidence in this record of any real world impact over the suggestion by these organizations that they would like to sit down with the player and talk about their term talk about the terms of our provider agreement now in policy terms it would be i think fundamentally wrong for the and i trust for us to say she these associations can't do that under threa leadership in terms of trying to inform the marketplace plans of the one hand the doctors and the other what they think is good practice if that's all they do if they go no further than the good why and there's some concern about that and how that assignment works and its impact on doctors that by the way has economic impact and we've talked to the commissioner we've organization because it is essential in many respects to what is going on in this case the coalition is in this case because at issue between plaintiffs in the coalition work contractual disincentives to providing care those were the the disincentives that the coalition raised in the march twenty one letter that mr al yodel pointed to every one of those concerns indicates that it is a consumer based concern and that was the coalition's position on those concerns it is entirely lawful for a health care consumer advocacy organization to attempt to persuade plans to change the terms in their plans and to communicate with their members for the progress of those efforts and with the general public about those same about those same efforts what plaintiffs complaint has tended to do in this case and if you rule that th that embarrassed them were due to their poor execution and not the truth that the coalition helped publicize the coalition's criticisms of plaintiffs contracts and of the way into which they attempted to use the bankrupt insurance companies provider network were valid and fair and crow competitive the fact that physicians tend to pay attention to the coalition's opinions does not reduce it's its right and its freedom to speak out on those issues mr alley all those label notwithstanding the coalition's position on each of the matter s in this case and the issues that it raised in the public and with physicians concerned valid consumer issues in their contracts and in their health plan and the district court party to anything about which the client that's to comply those admissions are contained in play that's responses to our statements of undisputed fact numbers thirty participated in any effort to change plaintiff's provider agreement including the telephone conferences and meetings that the coalition and  about plaintiff's provider agreement that's their admission second they had met that none of the q p g defendants had any discussions with anyone from the coalition that about the fees that plane just proposed to pay to physicians or about boycotting plaintiffs that's their admission and third they admitted that none of the three participated in preparing any of the h m a or coalition communications to their members about which plaintiffs complained including the word or so called hit le that they will take the provider's cost of providing the services into account worse yet not only is there no provision for an appeal of the reimbursement rate on the question of its adequacy or fairness but roman numeral three gives failure to accept replacement reimbursement methodology used as grounds for terminations of the agreement orders erica what's very competitive about that your honor is that today's reasonable price is t 's an reasonable price what they're saying is you have to have something in your proverbial you pair of insurance you representing the patient you have to have in your track a provision that says the rates that you pay me must be fair and reasonable sometimes the fact of the matter is your honor in our economy rates that are paid aren't fair and reasonable but they are market rate sometimes the rate a market rate is below the cost of the providers cost to provide it and if he's recently made so they have no right to come to us and say either you will negotiate and make your p p a put in there reasonable rates or who called you out in the record your honor x x or to thirty five is a letter  provisions one to hold harmless cause which may have made the physicians liable for expenses that are not covered by medical malpractise insurance policies was removed we therefore are not responsible for indemnifying h m s they that's a money t the section that permitted h m s a to quote the eligible charge for the lower cost service or supply rather than the service or supply proposed furnished by the participating physician was eliminated that's  provision and that's one they fought us on in other words that says if your rate is out of whack with the local community we're going to pay the local community rate and so they got that eliminated the distinction between medical necessity and covered serv was more clearly defined and so forth so they were talking about terms and conditions economic terms of conditions secondly as far as the boycott is concerned there is counsel is correct there is no explicit counsel says where is the real world impact the fact of the matter is that in this relevant market there is only one health maintenance organization h m s a has ninety percent of the market because of this conduct they knocked a j jenna out of the market and we would have otherwise been competing in this market because the market is the market for the buck in the pocket of the employer who pays for the health care of his employee and that employer has only one h m o to deal with in this entire relevant mark do you are eloquently argued for them that this is part of a day above the level of patient care they have a perfect right to talk about the level of patient care but they don't have a right to go to the player in state either you take and then the coalition mr meyers was the representative in dealing with h h n and and she wrote letters saying we're representing these groups and they never withdrew it's true what what council says they did not participate in the piece of collectively bargaining with my client but what they did do is they joined the group bargained with h m s say and let the coalition go out and say they represented them and  point withdrew from the conspiracy and what's the conspiracy recombination an agreement to jointly bargain collectively bargain over terms of condition of a pervert provider i preach it the time and patience