the class of dental labs in this matter i would like to reserve five minutes for rebuttal if i may there are two appeals before this court and they come to this court in strikingly different procedural postures and it's important to keep with the injunction that comes of this court after a trial by the government and an appeal by the government and a former appeal by us the focus of that case was dense supply what it did didn't do we have in the second case the jersey dental case an appeal from motions this is for failure to state a claim and the issue is whether under twamley those claims are plausible and whether they do indeed state a client first i'd like to address the injunction and the argument that we are entitled to an injunction in the has case secondly i would like to address that part of the jersey dental case which i think is pivotal which is whether we have specifically and properly alleged a specific intent under section two conspiracy to monopolize thirdly i'd like to turn to the section one part of the jersey dental case which is the rim and spoke issue and that has two parts one we submit that there is we properly alleged a whole conspiracy is the term is used and alternatively that we have stated a claim against three of the largest dealers which impacts the competitive impact requirement and finally as cleanup we submit that there are no illinois  brick arguments left that would impede our recovery here at least at this stage at the pleading stage we have now sued the direct purchaser we submit that's beyond dispute and were entitled to we submit at the very least loss profit damages as well as other alternative measures of damages that come from supply let me start by telling the court what our theory of the cases because we submit we should be masters of our theory and masters of our allegations because a lot has been said and obviously the coercion variable is significant we say that this is a two step process and can really only be understood as a two step process then supply comes to the dealers and it says you must sign dealer criterion six which says if you handle dense flights you can only handle that supply teeth who are some dealers that were grandfathered but that was basically the deal that dealer knows that then supply has a seventy five eighty percent market share and that as a practical matter economically it cannot agree with that except if it wants to take an extreme risk then we get to step two sept two is ok i'm put into this position where i have to accept this deal what happens next and at step two we say that they decided that they would enter into an agreement given this bad situation and that they would in the words paraphrasing paragraph one forty of the amended complaint that they would agree the dense lie would be the policeman and the maintainer of the monopol so that no one could cheat if we're all stuck in this boat we need a strong hand at the tiller if we are all on this playing field we need a policeman to make sure that no one's cheats yes your honor  can i think the problem i think you can conflated two problems or two issues the first issue is based on the record what is there that might be the basis of collateral estoppel then the second issue is the board issue of if we are right that those were established are we entitled to an injunction or are we barred because the government already has an injunction as to the first issue  held in part that lacking choice was injury to the dental lapse it was not just focused on the dealers it specifically in that part of the decision the talk about anti competitive effects i mean there's really one thing going on which is the other criteria in six but in the competitive effects part of the opinion it talks about it plays that out and looks at a number of those including you if there was no economic injury right if you assume all those things that's probably right but first of all we say that we or if we decide that for right we say that we can use the government's the decision and the judgment against the government under to the lapse granted it was a case mainly about opening up the dealers but it talked about denying competitive choice to the labs our clients elderly let's say we agree with you hypothetically that the exclusionary practice is in fact this is what was needed by the court the government's case resulted in additional if you competitive effects now you want to enjo privates case should should proceed independently indeed the languages of the court is known stronger than that it says that the two actions should priests precede quote in disregard of each other not saying i agree with you and so i wouldn't dispute that you have a right to have a private right to an injunction nonetheless continue point to something in the record suggesting that there is a threat to future that's not test it's an alternative test but it's not the test because it depends upon at what point you look at it from we say you look at because they're on separate tracks and that's what the supreme court has held we can rely on the initial  harm as the basis for our injunction we don't have to say oh the government got its injunction now we have the burden of showing yet more risk of threatened john young would say any time that the government obtains in an  suppose for getting the injunction but don't you have to prove that there's a need for the injunction we have prove that there is a need for injunction assuming that we can rely on the end of seed and conduct that the government relied on and we submit the warden says that we submit that the microsoft case do you think the government injunction sufficient it is insufficient they were not insufficient sufficient why is it sufficient and why is it not sufficient of fine i understand the question now we say it's not sufficient for a number of reasons first its duration is too short number one number two it is not a permanent junction which under zenith against  the framework for injury go and at the end of seven years if you're still a problem and ask for a junction you continue with another junction be put in place could we i'm not sure that the court would say that we would have standing after seven and a half years go it's a government injunction that's if it's are in wellington clearly run a record you've you've been here you've been fighting this battle we've been fighting the battle for ten years there's no question about that but i i think it's a question of injunction last standing since it's a government injunction i don't think it can expire after seven and a half years and we show up and say hey it should be extended i think we need our own injunction to do that and  microsoft decision as well that cited warden when the states went in for a similar injunction that the government had already gotten granted it was in the form of a consent decree they were they did not say what's new they sat you  in deed it is because they it took them a number of years to get a position of large market share then they added on top of that dealer criterion six which increased their market share another depending it is insufficient given the nature of the history of this and given what borden says and given that the enforcer in the end i trust laws is best served by having dual injunctions even if they're totally can grow what if they're to think permanent injunction marriage work here when you just said you could go into porth and get the get the injunction reinstated if that supply would start with this exemption six again if yes we would have to start from ground zero and prove that they had reinstated dilate dealer criterion six that is correct if you want to start what if you would be imposing upon us the burden of starting from ground zero if that is that zero why isn't that sufficient we think it well it is starting from ground zero but i think that that oversimplifies the nature of getting an injunction out of the antitrust laws and what would happen here have an injunction the government has gained and again and then the answer is we have to prove it we have to start taking depositions and we have to develop a whole new factual record that says that we have to do it that's one reason why and one has to a bunch of baby splitting to get an injunction of seven and a half years which is less than half the time the dealer criterion six was was was in place let me turn now briefly if i may to the section two specific intent because there we have a perfect pleading issue on a twamley standard on an appeal from a motion to dismiss and the issue before the court is whether we specifically plenty of your red light is on but you really haven't gotten through these real issue on section two is whether specific intent was properly alleged under the twamley standard of what is plausible there are two tests we say there's an objective test the other side in effect says there is a subjective test we say that aspen this court's decision in the posh and this court's decision broadcom a stablish an objective test namely that specific inten can be alleged by pleading inefficiencies or anti competitive conduct that that is sufficient for pleading purposes to meet the specific intent requirement or below where the record can you can you point to to establish that the users specifically intended to participate in the risk of trade isn't that we're talking about what we're talking about is whether the dealers engaged in a conspiracy once they were presented with dealer criterion six to to maintain dense lies monopoly and we say at our graphically intended to conspire to maintain  happened was that we are of the pleadings if you look at the pleadings and you look at per graph one forty and the policing language in the maintenance language that is consistent throughout every iteration of the plaint what happened was was this we said on that they were coerced and saying that their conduct was less than complete is a different statement than saying they cannot under any circumstances they lack the capacity to then enter into a separate agreement what our colleagues confuse is the is the conduct which we can see which is less than full full involvement with and supply with the capacity that once they are faced with the  and they well know we know now now well let me be clear before we did and and now the statutes of limitations have run on some of them so now that they come not as to certain years and indeed we submit that we should be able to recover on those years but that's sort of down the road but in general in terms of the concept we say that yes the conduct was such that they could sue limit suits with respect and then supply but it doesn't limit their capacity to enter into an agreement where when faced with this hobson's choice they have to make the best of a bad situation and they need a policeman so that there's no cheating we don't think that that's inconsistent we think the that argument misconstrues and mixes up certain kinds of conduct and their capacity to to have an agreement on the subject of specific intent sweeney pleading purposes and plausibility purposes under under twelve permits us to rely on the anti competitive effect as evidence of the specific intent and those are developments  the dealers or did the dealers in their heart of hearts or want and supply to maintain the monopoly which is in effect the subjective test that the court below applied and that one of the microsoft cases applied that's a subjective actually i'm a little surprised to be here again but i'm happy to address any issues that you're interested in as well as some of the things that mr dobbs has addressed with respect your offer for five minutes extra if we need it i think  and a specific intent the conversation that you just had with mr dobbs so let's start with the injunction in the best case that's under six section sixteen of the clayton act that act requires  that the plaintiffs show threaten loss or damage and in this court's opinion and warfarin sodium a case the plaintiffs rely on the court interpreted that requirement to require a significant threat of injury a showing of a significant threat of injury so has his argument that i think your honour's addressed this with mr dobbs that they don't have to prove that significant threat under section sixteen because the government had already proved it is mixing up two different records the government proved a significant threat of injury from criterion sixteen during the trial and was entitle to an injunction according to this court which was  practices and then separate from that determine whether they're entitled to an injunction you could consider whether the two step in it does exist that's exactly correct on it's a two step analysis the first question is do they have a merits based reason to get an injunction in the first place so let's remember here that hass and jersey are the same company and has had two years of discovery because they sued at the same time the government dead and their discovery was coordinated with the government case they attended the depositions they opposed our summary judgment motion on the merits of the case and won so this isn't a case where we have like a twelve b six issue they participated so the government gets a finding and a competitive effect that the dental labs generally had a limitation of choice as a result of criterion sixteen that's not equivalent to a finding of any trust injury to has because that finding an interest injury would be has was a purchaser of teeth has wanted to buy teeth of other rivals of down supply and has himself or itself was unable to do it that's an interest injury so the finding that generally dental laboratories in the country where we have a force a complaint where they made it complete where they now bring in the dealers this issue relates only to has though it right and don't the also argue that there were two fun things in the government's case there were two findings on was the foreclosure of arrivals and that was independent leases sufficient to sustain the injunction ok but what is the other finding this court found however that it limited labs choices with that finding have been sufficient to obtain a junction against criterion six which operates to open the dealers to rivals those artists that's a disconnect but that's also different procedural posture you have an injunction here well we do have an injunction so the question is whether the findings that led to the imposition of criterion six collaterally a stopped and supply from the merits of the case so here we would not be able to say that criterion six didn't hurt the labs when it was existing from the foreclosure of rivals when the criterion six was in existence however code the second finding about dental labs are hurt by their limitation of choice is a general finding of effect and there is a distinction is judged robinson found between an a competitive effect and injury to the antitrust pla what has has not shown here in the hess case is injury to it it did not plead it did not prove during the case that it wanted to buy teeth of over other companies and was unable to because it lacked access to them from the operation of criterion sec supposing we were to say that it was the limitation of choices that the labs had in effect resulted in some form of injury  a protection via an injunction ok then you get to whether or not you need a second injunction here and that was that's the issue that you were discussing with mr dobbs and it's a different issue i'd like to address that because that is i think a much simpler question but didn't the cord in deciding that misconstrue board no your honor it did not in fact board in the hall is the exact opposite of what mr dove says borden hold the government argued this is that the end of the opinion that it had quote an independent right to an injunction without regard to whether such a violation has been previously enjoined in a private action close quote the court rejected that argument it said that it could not hold as a matter of law that the previous existence of the private injunction did not warrant any consideration by the district court in assessing the government's burden to show a significant threat of recurring injury under section sixteen the borden case supports judge robinson's opinion that you don't have to that there is no well judge robinson actually did not hold that they weren't entitled to an injunction as a matter of law and my point is borden doesn't hold that they are either warden says that they're that in that case the district judge had denied the injunction because of the existence of the private to create and so when reversal happen is free in court the said that's not a basis you've got to go back and look and see if the government can make the showing under section sixteen but the end of the opinion they flatly rejected the idea that the government was entitled to a duplicative an injunction second injunction and i accept the correction they have to show they have to show as a matter of fact significant threat of injury and that's what the board a set so what the district court did hear and hess is say what is the evidence of a significant threat to future injury what evidence has has presented to us in light of the existence of the if you know that i don't they have the right to go back to the date of the original injunction rather than have a look at the future injury in light of the exists injunction i don't think so your honor because the first injunction was issued on a record in which criterion six was in force so the threat of injury there that justified what they haven't had the is has shown any specific future injury well as judge robinson found they presented no evidence of threat of future injury they had three arguments one is that seven thousand dental labs can enforce an injunction better than the government judge rejected that and i respect we suggest that you should because this is not a class action at the moment there's two plaintiffs so these other and the fact that other dental laboratories if there was an injunction in this case could come in and force the injunction is irrelevant and besides if they other dental laboratories have a problem with that supplies conduct of the under the injunction they can complain to the government the second argument they made  low was that dense apply this statement well that that that's apply statements were during the litigation were unrepentant and that therefore the court could conclude from those statements that dance apply and might impose criterion six again after the expiration of the government injunction and the judge said that was not evidence that was significant of a significant threat of injury so that you review that those findings for an abuse of discretion and i don't believe that's evidence that down supply is likely to him do it do anything in the future they should have had in my judgment the burden should have been to introduce evidence of market conditions today like you heard mr dobbs say injunctions to use too short so in order to try to get an injunction against a significant threat of future injury and extend that that  injunction keep in mind they didn't object to the government injunction they didn't comment on it even though under the toonie act that's an available remedy so in our proceeding they should have tried to demonstrate that the injunction was too short with evidence competitive conditions down supplies conduct today they didn't do any of that they just made these arguments and so when the judge denied the injunction she found that they alleged that they had a threat of future injury but they presented no evidence of it and therefore that is why she denied the injunction now she and she also denied their motion to supplement the record with evidence of injury during the period when criterion six in force and they did that she did that because this court had in house one i guess we're going to call it has won because he has two s one held that they didn't have a damages remedy so that evidence would have been relevant on the specific intent issue the pleading and this is now switching to the jersey case even though this is a probably six motion this is the same plaintiff and the question of whether or not they years they let it get it on the theory that we coerced the labs and then after this court affirmed the dismissal of the complaint on that basis they rewrote the complaint and added these allegations and they benefited from that because when we were here the last time two thousand and five to say course the labs are of course the dealers quote course the dealers i'm sorry and they benefited from the concession that dan supply course the dealers because they were attempting to hold on to their vertical price fixing claims is there much of a question about th i think it's a question of whether you can stop the whole discussion of jersey to three i guess it is by now on the ground of judicial stoppel if you find that they are judicially a stopped from making these allegations that the dealers are now equal willing and voluntary down supply in this monopoly if you find that they are traditionally a stop and you don't need to reach any of the other issues you can should we reach that in light of the fact that the district court did not reach that adequate record for us to make a determination yes your hon there is an adequate record and you could reach it as an alternative ground for a firm and see if you disagreed with her holding on the specific intent finding for example but i on the specific intent finding i think your honor has correctly isolated exact issue that divides mr dobbs and and the defendants here which is is an allegation of knowledge the same and equivalent to the specific intent requirement that the sweeney court held and that every other court that  considered this issue has helped the dealers who for purposes of this allegation are coerced into the obedience to criterion six they all knew about criterion sex obviously they were obeying it and is that sufficient to be the equivalent of the kind of intent than an actual monopolist has in the broad concave in the pages case when it's the monopolises specific intent to take undertake conduct that will exclude its rival you know i know your red light is on but it mean haven't they alleged that the dealers engaged in conduct that had the effect and in the aspects of the complaint where they allege specific intent there only allegation of dealer fault if you will is knowledge and that cannabis there is conduct that alleged conduct conduct is more the knowledge for example about eight years in the bettors i mean conduct to maintain and operate than the way in which they operated they report they were a dealer and we knew that and they knew what they were doing and as a result of knowing what they were doing they did what dens and ask them to do and that helped to maintain the monopoly and what more would you need to allege to allege to show specific intent a specific intent in a vertically aligned conspiracy may actually be virtually impossible to  allege and they certainly didn't do it here because as the cases dick's the other circuits that have considered this issue the other courts have considered this issue have held you have to allege that the victim here the coerced victim specifically wanted the manufacturer to overcharge them and limit their product choice that's implausible under tomblin there and virtually impossible and that's why i believe that they have not alleged here whether there is a case where it could be alleged i don't know but it's certainly not here defendants the dealer defendants were not parties to the earlier appeal in the house and jersey dental cases nonetheless this court did at length assess the impact of dealer criterium number six on the dealers and it did evaluate the dealers right as direct purchasers to bring claims against and supply as the alleged monopolist it was with the benefit of this court's earlier decision and house and jersey dental and the intervening decision by the supreme court   for two reasons which i'll address first the court consider whether or not there had been sufficient allegations of a conspiracy and then secondly the court also considered the issue of antitrust standing and concluded that it was the dealers consistent with the earlier opinion that had the standing first on the issue of the conspiracy as counsel has discussed the plaintiff's amended complaint tracks very closely the government's  case against and supplying the core elements of the government's case are specifically pled in the labs case they include dense flies unilateral adoption in one nine hundred ninety three of dealer criteria number six they include the all or nothing choice presented to the dealer defendants  motivating the dealers to behave in the in the fashion that they did and the language is quite clear and this comes from paragraph eighty one of the lab's amended complaint in short given dense live anomaly share of the market and then supplies demand that it's dealers participate with it in the exclusive dealing arrangement alleged here and it would be economically irrational supply dealer or would be dealer to carry the chief of any of den supplies competitors other than the grandfather teeth in which for that particular detail indeed from the dealer maybe it's economically attractive to labs what's missing in iran or on are the sufficiency of the allegations in the amended complaint there are plenty of allegations giving explanation for the dealer conduct allegations that more than meet the standard under twamley explaining the conduct parallel conduct by the labs in distributing them supply teeth what's missing and what is fatal standards for for a conspiracy and that's what's missing here you have very detail allegations tracking the government's complaint and in order to to try to as stated a claim no rational dealer given the importance as a lesson the complaint of don't supply having done supply on the product on the shelves could make the choice to do anything other than comply with dealer criterion number six that they had to know i mean i knew that they report of something greater than themselves by participating in allowing this to continue i mean you can say to victims but yet if they had not gone along there to venice there have been a more competitive market there would have been others who would have been in there competing to sell to the dental labs because these dealers would have been selling narrow artificial if you look at what would have happened under the theory that the pla and the same thing would have happened to all of the individual dealers if they made that choice what then supply was county on on is that the dealers choices you know the fact that you are still you are in a position that may have been painful doesn't mean that you didn't have knowledge that you report of the conspirators your honor i will i will also  we did on that i think it's not a matter of dispute that all of the top five dealers carried other chief lines they were grandfathered in at the time of the implementation of dealer criterium number continue to carry i mean what what you're talking about is more of a defense but what the issue that you're arguing really is whether or not the complaint the amended complaint was official that's right that's right and a bsent sufficient allegations of a horizontal conspiracy your honor we believe that aren't of the all standard there isn't a basis to find a claim that you can there is the issue of standing and we believe that the court earlier acknowledged that it's the dealers not the labs that for this and i trust injury have the standing to assert of the claims against  there's been some mixing up of consciousness absent let me try to straighten it out first there's a difference between having a different motive and having the intend for the common design as this court held in fineman or aren't the armstrong fineman case many years ago different players in an antitrust conspiracy can have different motives as to what why they want certain things to happen the key question is whether they want whether their objective and their design is the same what was here what was your allegation as to motives in this case in this case we said that the motive was after having and again it's two steps after having been presented with hobson's choice of dealer criterion six we then say in paragraph one forty given that choice we now well now that we're all in the same boat we want  inconsistency if you will look we don't we didn't believe that the imparted to lick their defense should be should have been used but we're not trying to re argue that case the issue is they can have be in a position because of  suing instead of reacting to the coercion the in a number of ways they decided to buckle under and they decided to get a policeman and in charge now the issue is how can we prove that specific intent for pleading purposes and we think broadcom is very clear and permitting us to do that and we think that this court's prior decision with respect to the specific effects on the dental labs is also  sufficiently clear to provide us a predicate upon which to sue so the question of motive and purpose cannot be confused that these actors had different motives but the dealers at the end of the day had made a choice and they have the capacity notwithstanding the coersion to either walk away and say they were going to do something else or that given this hobson's choice they would just  assume it was better for them to make sure everybody was in the boat and everyone was going to be policed and that is the choice they made and we believe that we've adequately pled that and that and whether we have or not the theory we submit is clearly plausible under twelve and that then it gets the point of if we need to amend fine but consistent with the theory the two step theory that we have articulated wit h with that i would merely respectfully request the court look at the competitive effect part of the prior opinion in this court where it says that the dental labs themselves were affected now there's a new argument that ms whistler made which is somehow there's a lack of proof of our individual client showing that they wanted to do that that's a new argument that has not been raised before before in terms of standing to ask for the injunction let me stop let me stop with with one remark under this whistler's theory she's right it would be virtually impossible ever to state a section to claim but her theory is wrong because it adopts the subjective standard whereas aspen in this court permit specific intent to be at least played if not proven by objective circumstances because one unless one were turning oneself into a