that were genuinely disputed that should have been submitted to the jury but were not concerning ticketmaster market power the court found that there could not be market power as a matter of law despite the evidence we had submitted that in percent well i don't believe or record reflects where those one percent are not only could be ninety percent yes i don't think it's reflected in the record the second issue that was improperly resolved was that the presence of sophisticated clients as a matter of wok precluded market power in this market the third was the fact that ticketmaster entered into long term contracts and therefore could not unilaterally raise prices that when that was used as a basis to  the accept facts or clear channel contract beyond what the contract provided them in a ticket master documents that specifically talk about if we do this that if we do the arrangement that as f x is asking for at other two different locations i believe we will then make up for what we're paying as a fact by raising the service fees so they obviously since they talk about doing it have the ability to raise service fees beyond what was in the them raising the prices and i don't know whether they would have to get a spot approval from somebody or a formal memo a contract or whether they just did it the record doesn't flat reflect that i think we're entitled to the most favorable internet possible from that it doesn't preclude the possibility that it's an area where the contract is up for renewal and hence new terms will be entered into and they may be talking about raising the service fee for in terms actually or i think it does it talks about existing relationships with those customers y this is they're talking about raising fees at a given point is not raising them on observation of what we're going to do in the future is sort of a thin reed for talking about actual behavior i don't think these documents in fact are talking about what we're going to do in the future much less in the context of what we do when we renew the contract what they're saying is that if we have to pass a fax this this means we have to raise the ticket prices the service fees to make to keep thinking master whole what are you exactly what are you trying to stop your competitors from doing what are you trying to prevent we're trying to get rid of you right that's an excellent question i think it ties into the overall market structure of this market and i think this is an opportune time for me to explain what we are asking we're not asking we are not asking for there to be permanent injunction against anybody ever having exclusive contracts and i think that's how it's presented we are not saying that include exclusive contracts in and of themselves are per se unlawful w that there's an interlocking network of exclusive long term non terminal contracts not just with seventy five to ninety percent of the venues in the marketplace but also with the largest promoter in the marketplace clear channel which dramatically dramatically affects the availability of those venues to us and affects the availability of retail outlets so i hear you saying that it is an abstract matter as a little proposition or not try to identify the source and i competitive problem that is exclusive contracts but in the hands of this crowd yes you want to stop them from using oh i don't think that's quite right are what i'm saying is that in the aggregate how are you going to how are you going to get where you need to go without doing  remedy phase would phase would be to do away with the exclusive contracts with retail outlets that ticketmaster has particularly because we've identified evidence that retail outlets don't even want the retail outlets opposed those exclusive contra to eliminate the best efforts clauses with the contract with clear channel and asset facts which have been used in anti competitive manner and to make sure the contracts are at least have reasonable switching around i t is a mass that would be prohibited by what you're asking for well you're i think at the remedy phase in fact it could be and i think that's no different than what happens at the remedy phase in any any trust case if you look back to that th that this court thought twice and which i was involved in for over a decade the remedy phase did prohibit kodak from doing certain things that some consumers would have wanted it to do and that's the nature of an entrance remedy i'm always down the road so how does this work now you've got somebody out there and you say we want to both we want to be able to participate in this simultaneously with the other side how does that work imo sells tickets for the same thing as well actually that's but i think your honour's again not what we're asking and we're not asking for injunctive relief down the line that says we must share every venue contract with ticketmaster what we're asking for is to change the nature of the competition to change how the bidding process works to make sure that it is in fact a fair and competitive bidding process how do you how you think the vetting process ought to be changed how should a court monitor the bidding process what should the ground rules eliminate ing the problematic problematic aspect of this troika exclusive contract eliminate the exclusive contract with the retail outlets and you will go a long way toward opening up a fair and competitive  somebody can just duck out of contact and you're out of that that may be a great story argument for them to present to the jury we were however precluded from presenting the jury the contrary average or you have to g to at least given to us in the opposition brief scene they had two key points on that the first being that your client has submitted beds without having the retail network in place and never had a problem satisfying the retail network requirement when your client one contract and the other the numbers the judge kozinski alluded to that in the largest category is something like twenty eight hundred retail outlets out of one hundred twenty nine thousand stores in united states were signed up by ticket master suggesting an enormous potential for signing up somebody else even if you don't go after the the locations the ticket masters contracts with you are no different than the facts in microsoft which dealt with a very similar kind of chicken and egg problem  and the evidence that they like the sound bite of the fact that we've submitted bids for two hundred ten years or whatever it is but it doesn't deal with the fact that venue's we've submitted evidence from venue that they were not giving us and were not taking  seriously our bid because we didn't have the retail outlets that they wanted in the networks and we submitted evidence that ticketmaster was telling venue's that in fact what it argues here is not the case that any venue will do it they were going to venues and saying we got warehouse we got tower records those are who you want those are the record chains and if you don't have those two record chains then you're not going to get tickets sold that's the evidence in the record that is that least enough evidence to create a material issue of fact on that question and again the rest is for them to argue it's away question but we have submitted evidence from the venue's that they value certain retail chains and that makes a big difference and that it was determinative to t are the source of ticketing in the in the purest abstract way the venue managers like s m g come into the picture because what they do is come in and say we will run all your day to day operations including your operations with your ticket servicing provided which a ticket stock com or ticketmaster they are the ones who do the day to day interactions and staples center ownership no longer have to do that and that gives them in some instances sole ability to control  i would say in most cases it would be predominantly handled by the venue manager with of course approval at some level by the owner of the venue ok one from the a lot of different kind of owners a lot of them are governmental some are private arrangements circumstances where it's possible to do so and in fact also i would say do that because they get a cut they get an additional fee they get a slice of the pie if you will from ticket this is this is how ticketing services companies get paid is they provide their ticketing services and for each ticket that's sold through them they tack on a service fee i was aware of that i favor we've all paid those sort of  to the extent that there is evidence on this shows two things that the ticketing venues are not as sophisticated as is presented there is evidence that it is in fact a very complicated process to figure out whether they also have a contract with tickets ticketmaster which has a best efforts clause in it to use ticket master sickening services not just at the facilities where clear channel controls the thickening selection but all places where a ticket where clear channel entertainment where clear channel talent is proof is that performing and they have we've submitted evidence that they are using that leverage the san francisco giants testified that even though they wanted to give the contract and did give their general thickening services contract two tickets dot com for pacific bell or pacific bell stadium that they had to opt out of that all clear channel performances so we lost a portion of what else they would have preferred to give to us because clear channel thanking them and said if you want the rolling stones telling of it there was a document leave it at the exit record two seven six listing eleven different venues where my ticket masters account clear channel was ramping up the pressure on people to use ticketmaster this look at this what it is is a lawsuit where a competitor is complaining about contracts that customers want no customer with regard to the retail outlets yet seen it can't physically and we were told i suspect it's probably the case that the warehouses in tower records don't don't necessarily want to be bound to an exclusive arrangement and at least with regard to the venue's but i haven't heard a reason why the retail outlets should want to restrict themselves to one ticket and as to none of those of i heard anything being offered up to explain why those arrangements are in the best interests or desired by the other parties to those contracts in a way that should preclude or keep the court from striking them down as necessary for relief well let me first point your honour's to excerpt of record twenty which is take us dot com answers generosity tori's where they explain the reasons why they enter into exclusive arrangements or agreements with outlets they do so because of the cost of the arrangement they do so because they want to have a stable working relationship with the outlet and establish a predictable prices which they'll pay the outlet and they want to have an outlet of outlet identified with them so that was already observed here there aren't any of those analysts retail outlets out there that are available if i may i'd like to hand up several exhibits that are undisputed these are these are these are just examples your honor of the extent to which there are available retail outlets out there we read in the brief i think you provided a figure which shows that understated facts which really establish the critical point which is that the required investment for setting up a network and outlet is only five thousand dollars and the way these bidding competitions take were just told a few minutes ago that there is evidence that ticket master uses in its sales pitch for the venue's the fact that they've got the retail outlets and we were just discussing where that evidence was and i'm not sure we know how  person as bad as i understand the situation we're talking about two contracts we're talking about s m g s n g as a venue manager they would tend to manage venues that are owned by government entities they  chose ticketmaster used ticketmaster because it was pressured by f s f to do so there's literally one document that takes dot com sites to it's a letter ticketmaster and that applies to open venue because just the venue has a contract already with take us dot com for example of course they have been he was already tied up where there is an open venue and there are so pursuant to the contract and through channel agreed to use their best efforts to get us well you have to ask the question what does it mean because my way of thinking best interest clauses are pretty meaningless and in fact  not at all because then figures dot com or another taken in service company simply comes in and says we'll give you the same terms for channel and just competition the critical point here is there is no evidence to show that this best in first clause had any impact on competition that's where there is a total failure of evidence in the record because in fact with what's in the record what's been said so i'll do a back and look but i think i have heard from someplace or seen someplace references to clear channel being motivated nationally electing or steering their programs to venues that are ticketmaster venue's and then new induced or dis induce to sign with ticketmaster or discourage from signing with tickets dot com because they won't be able to get the rolling stones show if you sign up with tickets dot com the latter i do not know of any point to is the fact that later clear channel came to pac bell park and in effect said when you do a live music concert we don't we do not want you to use tickets dot com there was no evidence that approach had anything to do with a best efforts clause the evidence was very clear it had to do with the fact that tickets stopped off at suffered a massive failure wanted to try to do one of these big on sales for a live music concert and just as the facts are clear channel later was simply unprepared to risk that with a live concert these on serials i i'm sure you all have bought tickets for some of these i know a couple of when a ticket for a very popular event goes on sale is typically ten am saturday morning i can sell out in minutes and you've got to have everything up and running across your whole network and running beautifully and if you have any sort of show that there was an adverse impact on competition that was not just temporary and that was substantial and they have not come up with the evidence to do that they failed totally on that point they literally have as ticketmaster because but not the reason is very clear in the testimony it is that they have no faith in tickets dot coms ability to handle the arm sale and that you'll find something maybe they arclight ticketmaster that's easily matched buy tickets dot com and then in a nanosecond terms of the dollars  eighty four of the excerpt a record and does recites that there is in addition to a multi million dollar signing bonus as part of this contract there is a per ticket being paid to clear channel for promoting well since they've signed up to a long term exclusive ten year contract i'm not quite certain how we'd have the ability of match that and the other thing i would point out is for them to say well this is perfectly ok and a good deal is not anti competitive contrary to their own admissions which is that if excerpt of record to sixty eight when there was a bundling of ticketing services and talent being promoted by an adversary they wrote in and said our lawyers have told us this is illegal and you have to stop this immediately but if we with ninety percent market share do it i guess it's ok that goes dramatically to their intent in doing this and it's an anti competitive intent the second site that you asked for the s m g to ten cents per could get sold by ticketmaster any of us directly controlled affiliates ten cents per ticket pay from ticket master to s and he asked the record on that contract matters now they again may persuade a jury that what they told the stores was not told the venue's was not in fact correct but that's a fact question for the jury to resolve there is evidence on our side of the scale on that issue one one more issue if i may on the on the question of retail outlets everybody seem to accept that there was evidence that retail outlets don't want exclusive contracts there is also evidence that the venue's do not want the all their ticketing services from ticketmaster but be free to get some of them from elsewhere and the ticket master has consistently refused to do that but i don't recall that really being part of what you're saying needs to be changed unbundling you got these four different outlets and ticketmaster says we got all four or we don't do it and that's why they didn't get major league baseball or something like that i haven't recognized your complaint is being ticketmaster has to be made to do individual