states farmers and consumers united states brought this case to enjoin he great horizontal non compete agreement the restrictive clause that clause just ends directly at millions of u s consumers who want better winter tomatoes the question is and it is an extract and i guess the factual difficulty i'm having with your complaint is that i as i understand it this is a foreign agreement that purports to restrict the israeli company from selling these long shelf life tomato seeds to mexican farmers so to get to the impact on the u s consumer it's starting to sound like we've got an indirect effect as opposed to iraq can you in our view on all fours analogous to the hartford case in which the supreme court found other facts presented to it that the f t i a was satisfied and that case there was a strong restraint imposed in london but intended to affect the united states s insures in attempting to make some changes in the insurance business in the united states by threatening and i guess what to withhold reinsurance if they didn't make those changes if has there i cannot sell seeds to be grown in mexico no resulting tomatoes are grown or can be imported into united states united states consumers are deprived of the competition that those tomatoes would bring if they were allowed to farmers that would produce a long shelf life of tomatoes that with them be sold in the united states or i think the district court found you were speculating that they would sell such seeds but you're correct otherwise yes so the point that i want to impress on you today with respect to the directs component of the t i a is the supreme court in hartford on the caps california and connecticut complaints that were before it s export oriented growing regions of mexico similar which is on the west coast and baja north the vast bulk of the tomatoes that are grown in those two regions in the winter are grown explicitly for export to the united states everyone in this case knows that everyone knew it going into this agreement it's been that way for several years now and the whole point of growing long shelf life tomatoes in those regions is so that the tomatoes can get to seattle and pittsburgh and las vegas briefs the qualification argument is our first alternative argument and then we even have a second alternative argument as to what we think the proper interpretation of direction be but i submit that the court need not reach those alternative arguments the case can be decided and t yes if we were to consider the overarching question becomes have you read and can you substantiate a rule of reason the answer is yes but let me go back for one moment because i think you you spend a lot of time on per se and mike the point that i am asking you that if we don't agree on your per se argument have you a verdict and can you justify  definition was to go wrong and his his rejection of that in his rejection of the rule of reason was that well on the on the domestic side he went wrong by concluding  confusing our market definition which we think was a very plain straightforward statement and i'll reiterate it seems designed to grow fresh markets tomatoes in north america during the winter months with the background facts that we about the defendant's conduct about the nature of the market about as there is conduct and he just seems to confuse the two we don't think there's anything unclear about our very simple statement of market definition yes it's  cleaning we don't think there is any basis for the district court to dismiss that aspect of the of the case for yeah i believe fraud was one because you can require more definite statement there may have been one or two others but certainly not it not including the other fellow's car that's right and of economic harm not competition economic harm and i'm trying to answer and i'm not really sure what you mean by economic harm we ledged harm to competition and i think that's what we're quite good you growers and exporters of tomatoes in mexico in late two thousand and two and it's a reference price for the import of tomatoes our first point in our real twenty j letter was we don't think that that has any relevance to our primary argument which is that the definition of the market would be no different it would be no different we think it was perfectly adequate it's just like thank you think it's going to give you some extra time this is an important case and we want to be sure and understand you very much for it just to help  complaint was dismissed is because this fatally flawed at the center of it the allegation that council read to the to the court is a crucial importance and you have to look at it very carefully from paragraph thirty three of the complaint the government alleges that the relevant market seems you don't say what kind of seeds is going to grow fresh markets who made those in north america during the winter months they didn't tell the district court judge what kind of seeds were involved i mean obviously tomato seeds but there are many many types of tomato seeds and only some of them are elements of this dispute it is also the district court judge who knew about geography other than that this involve of the year they were talking about other than winter and i know that winter is never defined but i note that in the government's papers of this court they're now talking about non somerton eight dollars which is a reason i could conceivably get nine months for rathe after it certainly gave the district court judge great problems that just because i fish around trying to figure out what market was being alleged and what that what the court found was giving the government the benefit of the doubt that there were two possible markets that were  received this complaint and they were talking about the operation of the american and a trust lost and that you did not you did not get sufficient notice is that right it's not that i didn't get serious problems and the increase of the delivery of legal services because the expense of discovery because of notice but that's a personal view the supreme court has spoken and before point is to look at what is being restricted and the so called restrictive covenant which as i said really is not a covenant in the sense that parties got together to try to divide up the world and help themselves what was going on here is understood because there are a at most speculative i mean you have only disputed evidence before that before this record that the cost of the tomato seeds is last and one percent of the cost of a tomato in the united states and you have a statute that says that american farmers in united states during the winter but they haven't been able to do that from the standpoint of the consumers and i'm sorry we have misunderstood are you talking about the tomatoes or the seeds talking about the latest from seeds are there to grow tomatoes this whole matter now the effect on the consumers in the united states isn't that the whole basis of the government's argument  the government's argument you know here we're coming in the aluminum company case of learning hand narrowing down the banana case saying if there is activity in a foreign land that has a direct effect on artificially narrowed the market and that was the reason for alleging it the way it is in north america simply because everyone in the case knows that there is an aspect of the case about traders being grown in mexico and then imports united states north america so many restrictions and conditions on his vera that are the fact of the amounts to a bar whether it does or not of the degree to which it does not is not a question to be faced at this time on the pleadings that's really an issue for discovery summary judgment so we don't think that that argument  i competitive non competing agreement which is what we have here is not justified by allegations of theft of intellectual property it's that simple mr powell referred to the arbitration is going on in israel that is not and and i trust the forstmann action for thirty five years and i must say that this was one of the finest arguments i've had on both sides it's just a great pleasure to have such great counsel in this case we would echo this thank you all