match today there's a few points i'd like to make today for emphasis the first point your honour's is that this is a pleadings motion rule eight applies to all of them at need plead is a short and plain statement of the case and its complaint and that's true not only under the common law cause of action that it asserts but under the any trust causes of action as well twamley itself says there are no heightened are not pleadings cases but their merits case summary judgment cases trial cases post trial cases cases that are in app is if to the procedural posture of where we are right now secondly you i want to talk about the structure of express cripps this case concerns mail order pharmacy competition paragraphs one to eighteen and thirty three of the complaint identify that express scripts own is a mail order pharmacy it owns and operated one and in fact this is the only mail order pharmacy by p b m rule by express scripts rule by the allegations of the complaint that is permitted to sell prescriptions to eighty five million americans this infects express scripts with a conflict of interest at the same time that it's managing thousands of pharmacies it's potentially competing with them it has an incentive to foreclose s but owned and operate mail order facilities they have the incentive to to foreclose competition either by unilateral or conspiratorial means now it's also relevant this point to why express scripts would force the ponce so many pharmacies thousands of them a contract of adhesion via unconscionable means and i'll get to that in a second the third point that i'd like to talk about today or honors related services case that we set forth below in our briefs or so forth in our briefs as well as the smith cases on the missouri law under missouri law you would look at the attendant circumstances and conduct of the parties to determine whether quintessential factual issue but fact findings were made you supposed to look at by the way the objective only reasonable what do what would an objective lead a reasonable person think when the conduct occurred in there you can look at the visited visiting nurse association of st louis case three forty seven f the third can fifty two eight circa two thousand and three so here what would have thought was that would a reasonable person have thought that the contract  vade now the court below made a factual finding an interim miscible factual finding concerning the documents that were attached to the complaint about what they met so i would like to talk about those facts in those documents if your honour's have in front of you the joint appendix i'd like to read to refer to refer you to certain pages there page j a forty seven page j a forty seven is the credentialing form that was provided by express scripts to our matus in electronic form they spent a lot of time putting this form together obviously and on this form they asked certain questions if you look at page j a fifty one this is page five of the document your honor here on the top left half hand corner of that page says indicate the anticipated percentage of our exit volume in each setting prescription volume that you intend to sell in each setting and on the right hand the right side of that page it identifies various channels through which you could sell those prescriptions to pharmacy one of them is mail order oh matt checked the mail order box and put in the sixty five percent anticipated that sixty five percent of its sales would be by mail order now this came this form to us in twenty fifteen and we responded to the form in july twenty fifth you know are we i mean that's one with  thousand and fourteen agreement expressly prohibited mail or cracks in order in the definition of retail pharmacy excluded mail mail or it did but obviously mail order to some extent must have been permitted because this was asked on this for so we responded to wait and then we were given the fateful e mail which we'll get to which said that you are approved to continue to be in the express scripts networks multiple that works not cingular not just a retail network but obviously a mail order network as well there must have been a mail order network because express scripts was in it maybe it was a network of one but they were in that network that obviously no way did the terms of the agreement no vision that you also have to have an extinguishment of the previous contract in our view that view this was an extinguishment of the previous contract because new obligations were agreed to here in other words they were saying you can now go forth and and maff and they did not tell us that we were in breach with respect to the agreement for the previous nine months that's enough for an extinguishment the prior agreement i believe that is enough for that or an extinguisher and again it comes down to the attendant circumstances your honor and the conduct of the parties thereafter also say that nine months following the receipt of the e mail that i want to get to again they were reimbursing expression of his reimbursing ermac for the claims that it was making it didn't say wait a minute these are mail order claims are terminated not until nine months later that occur and in fact on paragraph s of the complaint we identify that for the year prior to terminations tens of millions of dollars in revenue was provided to ermac in from from its mail order sales by express scripts now just fifty completing the form j a fifty one where we are below it also asked if mail order the pharmacy conduct a mail order locally out of state or both here we said that ninety five percent of the sales that we were providing my mail order were out of state so these were this was not a very disclosure these were not disclosures written on a paper napkin that was drawn in the store we were responding to specific questions that express scripts was a simple providing proposing to and what happened in response to that when you're saying proposing you're suggesting that there was a proposal for a change in the contract isn't just a gathering of information for the re accreditation this was a gathering of information for your credit i had this point we had no idea what was going to come there after i agree with that but we responded truthfully and these were not very disclosures is my point the other thing i'll say about the two thousand and fourteen contract in order for the twenty fourteen contract to have forced for us to have been in breach of it it would it should and it would ha not be unconscionable and i'm going to get to the point as to why the facts demonstrate at least that there should not have been a factual finding that is not unconscionable because the allegations that we have made comport with missouri law but getting to jape that through to the fateful  i said that's j a seventy seven year honors on j a seventy seven so the credentialing information that was gathered is judge kelly identified by that was provided to express scripts was given in july of tw august seventh twenty fifteen an email assents to or matt from express scripts that says the following we are pleased to inform you that your recently submitted credentials have been reviewed have been reviewed and you are approved to continue in the express scripts holding company pharmacy networks plural now the district court below on page twenty three footnote nine says that made but this e mail doesn't say your information was accepted it doesn't say we here by acknowledge receipt of your information it says we reviewed it and based on our review your continued to approve your approved to continue to be in these networks again what would an objective really reasonable person have thought on receipt of this e mail after making those disclosures that's the key it's a factual issue and it should be reverted to the district court so as factual findings can be made by fact finder  fourth the network provider agreement is unconscionable to determine whether an agreement is unconscionable you look at the broader case which is supreme court of missouri law and there are four factors to consider there first was high pressure exerted during the contractual i would call them negotiations but they're not really negotiations the contractual process contractual formation process so i'd like you to look at page j a seventy nine contract and saying look if you don't sign it we're done is that the pressure that is the pressure added the pressure here says if you don't sign the contract you'll be in breach not only that if you do it will be done but you'll be in breach and it says it goes on to say and that by the way that's in bold and in underlying it's as if your pharmacy fails to complete and return the required network provider agreement by november tenth twenty fourteen within two weeks of receiving this document your pharmacy may receive a breach of notification and then says this will be your pharmacies last opportunity to comply with our request to return the provider agreement and avoid patient disruption your patients are going to be disrupted if you don't sign this contract i think that's very high handed car i think that's heavy handed negotiate its terms that has to be accepted as true on the pleadings motion thirdly was there on equal bargaining power paragraph seventeen of the complaint identifies that ninety seven percent of the retail pharmacies in this country are members of the express scripts network paragraph seventy four through seventy eight of the complaint identify that express purpose has market power that it made up it was the largest p b m in the country and it made up sixty five percent with c v s of the sales that are mad hack at the time that it was terminated there was an equal bargaining power here it seems that standing alone is that sufficient and it seems like just about every contract i signed i don't have equal bargaining power with the with the company or business that i want to deal with it's not it's one factor out of the four factors i don't i don't think every contract that i sign or your own i would submit that you sign you have an equal bargaining power and you make a choice as to whether or not you need to sign that contract maybe you sign a contract because you want to use amazon but you don't have to use amazon you can use walmart here the question is did they need express scripts the stay in business and the market power sources say they absolutely did could they use the other p v they couldn't i can i can tell you this is not in the factual record gone out of business at the determination of express trips they needed express scripts so relying on the other p b s was not sufficient express scripts admission was necessary for them and ninety seven percent of the other pharmacies in this country there's eighty five million americans that attaches to remember that's a lot of americans the last i heard i'm here your honor was with terms one sided this contract purported to provide are met with the express scripts with the ability to engage in mail order pharmacy sales but not or matt it also had a one sided unilateral terminations provision they could terminate without cause but could not this was an unconscionable contract the facts suggest that fifth the conspiracy allegations any trust  the claim is valid that's what plausibility needs it's a minimal threshold and that comes out of the text messaging any trust litigation decision that judge posner issued where he affirmed the denial of a motion to dismiss what do you have to do to show conspiracy allegations are rob regret those are the two really that are alleged here good questions so in order to have parallel conduct you don't need to have identical conduct nor does it need to be at the same exact time if you look at the yes these three cases out of the fourth circuit which reversed emotion to dismiss i believe in twenty fifteen maybe twenty sixteen i might get that they were wrong but the reality was there that had to do with a new developer of power tools power tool technology some of the entities wanted to deal with a power to eighty at the beginning some of the coconspirators that i'm not dealing with them at all they had various different responses but it was deemed to be parallel conduct when they all terminated if you look below in the district court where in the precision our x case and the and the h m that express purpose finally and fully terminated erm act on august twenty second two thousand and sixteen ok paragraph ninety three the complaint says eight days later eight days later erm it gets a note from c slashing its reimbursement for months there after that c v s finally terminate sperm and lastly i just want to say you also have to plead plus factors a description of the plot factors is very well stated in the text messaging any trust litigation did you show concentrated market we said here for p b s make up eighty percent of the sales did you show a conduit through which conspiracy could happen here we say that express scripts c v s the other p b s are on a trade association board they control it through which they could have had discussions did you show a common motive to conspire we've already talked about that and did you show that or could you show that there were actions taken that were against self interest to the extent that express scripts the p d n had an incentive to provide low cost high quality columbia to provide pharmacy service it also had the highest third party predications in the industry with that said i'd like to reserve the rest of my time for rebuttal thank you your  blatant violation of the express contractual terms and defendants exercise of express rights under that contract that's the twenty fourteen agreement judge kelly you referred to plaintiffs now takes that contract a e perhaps i'll start that way with the trust claims because that's where my friend ended as this court recognized you need to show not only parallel conduct but plus factors judge kelly the parallel conduct you trade association but in the compound in cases there were very specific allegations that following specific meetings i think they didn't buy three specific trade association meetings the members all acted meetings here the policy was always no mail order and they don't dispute that the original contract is not violative of the act or trust laws so the fact that we started with no mail order they violated the contract once that was  discovered press krypsis seventy thousand pharmacies once it uncovered the fact that they were violating the contract it informed of that gave them the right to appeal offered cease and desist they didn't seize the mail order and then they were terminated on the other hand following the notice the cease and desist letter months later c v s enters into an agreement with parker matt that requires them to do mail order it's the exact opposite of parallel contact letter requires them to sign another agreement that requires them to do their own mail order is not only renders any conspiracy not plausible but it's inconsistent with the conspiracy would lead what is your response to the assertion that when express scripts wanted to cut them out of mail mail order that that actually was against express scripts financial well being that i was against their financial interests that they weren't charging less for their mail order business than parker erm it was again express scripts from the very beginning prohibits mail order for various reasons the fact that these designer t drugs are expensive they are selling them all over the country through mail order they're giving ninety day renewals instead of thirty day renewals there are lots of legitimate reasons for why you do not want pharmacies like parker mint to engage in  mail order in addition even if i would say in addition to those valid reasons there is no under curtis trink of there is no prohibition against a party from freely deciding who they want to do business with so in other words on day one there is no requirement that express scripts has to do business with parker mint at all let alone that it has to do business with them by allowing them to do mail order that's pretty strict as they try and rely on the one exception to curtis which as the court supreme court said there is the outer balance aspen ski which is entirely different because in aspen ski one it's the outlier case but there they were doing business for a long period of time the main mountain under the ski pass that apply to all the mountains and then for no budget no business reason and in fact it was alleged there and showing that it it hurt their short term profits by canceling the program only to have a long term anti competitive aspect and that's the outlier so i think here it began with no mail order so they were never under this longstanding practice to there factual allegations the best they can come up with are allegations that they think they provided better service than express scripts did through its mail order pharmacy but that's nothing more than the recycles and labels and other things that twomey says it's not enough to sta claim you know i'm not really really sure i understand exactly what the romance argument is but as i was looking at it i kept coming back to the thought that on that particular issue that they were really trying to argue that express scripts w sort of fitting the proverbial square peg into a round hole here in terms of they seem to be suggesting that there's some single brand market that perhaps express scripts market should be defined solely as the services it's providing to its customers but then what gets even more confusing is partner might be used to customers as the people that are walking into their pharmacy are here people that are submitting mail orders when express scripts customers are actually the health plans them selves the third party pay  they don't allege that individuals can go out of network and still use their mail order they don't allege that it's not interchangeable because just like in the humana case people can pick and choose the health plan every year so it you know they try to squeeze fifty square pegs the round hole by citing the kodak case and kodak very different situation where well and here we have no aftermarket was all done at the same time when you sign up for a play and the  is fully aware of it but also significantly there's no lock in here where in kodak people but very expensive copy machines very expensive equipment then they found out after the fact that the only way they can get replacement parts is doing it through code to do that is not it didn't matter who the customer is here and whether you're talking about the insurance plan or you're talking about the person you described as walking in off the street to get their prescription drugs it seems that they call it switching costs or something that that the cost seem different for the individual consumer versus the plan in terms of moving around to different networks to get what they need through mail order but i think judge kelly either way plans can have multiple p b m so the end customers can choose different health plans people often choose a health plan because of which doctors are in their network so in your view it doesn't matter which one it is they're both equally i guess agile in their ability to switch to another option yes and it doesn't the substitution doesn't have to be seamless the question is it's similar to  the queen city case the domino's pizza case where if you contractually restrict yourself by entering into a contract here either the third party plans signing up with express scripts or the end customer is picking at health  plan your contractual restrictions doesn't become anti competitive or anti trust in the queen city case it was the pizza place that does the domino's franchise it has to buy its supplies from domino's it entered into that exclusive video arrangement  can turn around and say oh wait a second now i'm stuck in this exclusive arrangement where i have to use express scripts mail order pharmacy that all of a sudden becomes you have to competitor their argument of course and is that they'll say that those are contracts are entered into by employers and that the actual consumers of the pharmaceuticals at the end have little choice unless they're willing to encourage or bring costs to go outside of the plan that they're not involved in that bargain that they're in fact captive does that make any difference at all well i think your honour's is court recognized in little rock and as the first circuit held in in stop and shop first blue cross you do have to look to see where they're trying to fit that in but it's for the tying claim they also don't allege for getting the relevant market they also don't allege facts that would make it plausible that there was an abuse of use of market power using their own percentages in the complaint it suggests that express scripts had about thirty percent of the market which is not enough for finding market power they cite tweezer us from the seventh circuit and visa but they are those cases showed market power through direct anti competitive effect the raising of prices when you were in there really wouldn't there's no allegations whatsoever here that our mail order prices went up after they were excluded for anything of the of that sort i'd like to turn back to th fourteen agreement in fact it's pursuant to the twenty fourteen agreement section two point two b of the twenty fourteen agreement that the reproduction process even takes place why isn't that a fact well because it's on the face of the contract on the face of of the twenty fourteen agreement on page j eighty two two point to be says credentials and recruit actually from time to time you're  entering well i strongly believed judge white's inference was correct about what the purpose was of the of the email response we don't need to get there to defeat their notation claim they themselves concede at believe it's in footnote five that they're not alleging waiver or amendment of the original dream explain oh they would need something more for that but instead they're trying to allege that these two sentence e mail which if you compare j a seventy seven to j seventy nine is from the express scripts provider credentialing group where the letter with the original contract is from the express scripts contracting department but even putting that to decide that this two sentence email can somehow be an entirely new contract it has to be viewed as terminating the prior contract and then entering into a totally new contract there are no material terms in this contract how long is this supposed to go for what services are you providing what rights and obligations to each party have under that agreement none of that is contained in that what they would have to show is that this one page seventy seven is in and of itself eight both determination of the old contract and within its four corners a whole new contract if what they're saying is well you were going to take most of the terms of the old contract but just wave some of them because of j seventy seven then they were outside of the no vacation world and they're back to an amendment and waiver which they themselves admit and that that they're not enti him to do i think one of the things that's that's important that touched upon book the at the trust in the contract claims the fact that express scripts didn't have to do business with them at all this contract also had an entity within fifteen months of the touch upon unconscionably lady as this court recognized the phillips petroleum in the missouri supreme court recognized in the amex case there's nothing improper about enforcing unilateral termination rights  leave it there's nothing else for them that this is really their their only option to get into the network or to get into judge kelly one they themselves said they were doing business with c v s so putting aside the conclusion mail order without relying on the e mail so somehow they were able to do this business i would also like to point out since my colleague pointed to the questionnaire that the questionnaire that j fifty one and the other pages he cited s do sixty five percent mail order does not say they're doing sixty five percent of express business through mail order so the fact that the questionnaire asks about how much mail order business are doing is not some implicit waiver of the original agreement that allows them to do mail order and again they don't deny it there is a no waiver provision in the contract because with seventy thousand pharmacies you can imagine that a sometimes takes time to catch up the impact on parker matt to be out of this network to be out of the best script well one if they had given up their mail order business they wouldn't have been out of the retail network but at the end of this original three year contract they might have been out of it anyway so it's hard to know what the impact of it is we heard today not in the record that they're on the verge or maybe out of business but that would have happened at the expiration of the contract in any event the contract was terminated with about a year left remaining in the contract so it was only terminated about one year earlier than it would've had it expired but i do think that ticket and you know just want to go back to us for a moment if you look at the claim that definition going to drive you straight into paragraph seven point nine on the anti waiver provision inside the agreement i mean because if you have to start pulling out all parts of the old agreement to understand what the terms and conditions are of the new agreement aren't you absolutely nothing about what its terms actually are happy and forced if you walked into a courtroom with that particular paragraph and says here's my contract judge tell me what it means what could a judge a trial judge actually say  that is one hundred percent correct that they need to show somehow that the four corners of page j seventy seven of that e mail is in and of itself a new contract and also terminates the old contract they can start picking and choosing and creating a frankenstein bits and pieces from two different agreements because then they fall exactly as you said judge erickson into the no waiver no amendment provision and that is why i think judge white correctly said what they're doing here is saying you've satisfied two point two big you've submitted your recruit actually information and you're going to continue but continue under the twenty fourteen rights and obligations so they sort of half arguing new contract half arguing apparently that we sort of waived our rights because we must have known they were doing mail order but they know they can't they recognize in footnote five claim a waiver because the contract expressly excluded it thank you i  i think i'd also like to conclude by saying this happens to be a case by one pharmacy under a very specific contract and respectfully submit that this is not the appropriate vehicle to alter existing antitrust law in a way that would disrupt the obligations and express scripts express use of the provisions that it contracted for when it chose to do business with parker parker met in the first place and for those reasons and the reasons  was illegal under the any trust laws that's absolutely wrong that is one of our principal contentions that it was either illegal under the conspiracy laws or legal under unilateral acts to the lock in allegations that we discussed mr  a saying well it's actually very easy to switch for a consumer to another p b yet those facts are outside the four corners of the complaint and cannot be considered three he also talked about the fact that these drugs these dermatological drugs are expensive your needs to be special oversight to those drugs as opposed to others again outside the four corners of the complaint should not be considered forth the leveraging question that judge erickson asked about this is a timing arrangement a negative so it is there in eastman kodak they talked about a negative tie where if you're precluded from doing such things by virtue of being allowed to do some things that can violate law so that kind of theory exists is that pretty universally accepted as a mail order bride allowed or mad to provide retail pharmacy sales and to be reimbursed for fim retail pharmacy sales by the p b m of our express scripts on the condition that it would not provide nailer sales secondly with respect to the aspen ski theory by the way it's not only a tiny plane there's also a section to clean your monopolization claim remember one of the things that we've talked about is express scripts owns and operates a mail order facility the only one by p b m rule that's allowed to mail order to eighty five million americans it has one hundred percent of the market there by by precluding other pharmacies from engaging in that activity it is maintaining its monopoly in those services now that comes to our single brand market and the single brand market allegation never a relationship between the parties right so trinkle was in a political aspen ski there was a preexisting contractual relationship that was entered into for a while and then the relationship was terminated by the three mountains as opposed or what i was going to say there is that the my colleague here said well aspen ski is not a political because there is no demonstration of increased prices direct evidence of market power is not only increased prices but the ability to exclude competition and here express scripts definitely has that that power to exclude for the allegations of the complaint without express scripts you can't do business that's what we're saying let one last thing i'd just if you knew you started mailing prescriptions in two thousand and twelve in twenty fourteen you're provided with this contract that purportedly changes the terms of the relationship and takes aim at your business model then you tell truthfully what you're doing you've raised the