go i believe i fully stated our position in our papers and i'd be happy to answer any questions that the court might have you counsel you've said in your brief that the language and  district court relied on was dicta correct i believe i said so your honor in a mild ok so explain to me how let's say we disagree with you let's say that the operative we believe that the language the district court relied on is the holding of lucas and not dictate what happens to your section one case then if we disagree with you that the language you stick to if the language is a holding i would ask that this court reconsider that holding because it cannot be the case that i trust injury refers to injury that must have been caused by the end i trust violation and could  saying the lucas holding is inconsistent with supreme court precedent if the district court's interpretation of locus is upheld yes but i don't believe that's the real meaning contract to the defendant and there was no evidence of sheep or competitive prices or any restricted output and therefore no harm to competition and it also found that this particular competitor was not properly suited tracey and i trust coverage and went to summary judgment twice there was no evidence that the challenge conduct had resulted in super competitive prices that means prices high leaving us would be charged in a competitive market and no evidence of any other kind of restricted output such as to remove all of it of a particular offering or loss overall out dog on the block and when they buy this exclusive distribution right they basically have control of the market and the court says well we don't really care about that because if some small fish had bought it  have a man i trust violation and it incidentally causes the plaintiff injury but the plaintiff's injury wasn't caused by any and i competitive aspect or effect of the end i trust violation then that plaintiff is not has not come forward to vindicate and i trust policy or counsel you're essentially it sounds to me like you're essentially saying lucas misinterpreted brunswick i'm not sure that lucas said i don't think look this really turned on this issue i think ultimately turned on it on the court's finding after summary judgment that there were no there was no evidence of super competitive places or any other planet than a competitive farm and there was evidence of program patent of reasons to give the exclusive license to that we might agree with you that lucas misinterpreted brunswick which came obviously before it aren't we as a panel still stuck with lucas even if we think lucas got it wrong  i actually can give two analogies because you and i trust you sometimes the public aided but this question shouldn't be so let's take a hypothetical case for breach of contract and the allegation is that i sold rotten the pleadings by saying yes but the plate i could have delivered the tomatoes in they could have been improper in good condition and the plaintiff might have mishandled them after receiving them that could have been the cause of the rotten tomatoes therefore there is no possible case council let me move to a different issue you were watching the nd amended complaint that it was the contractual foreclosure of competition and not the award to fs which caused the harmony any trust injury correct yes  i wasn't the attorney below but yes those were the and so this same harm was present for fifty years when c f l had the contract no because my understanding is that the new shipper is charging super injury and was in the competition for closed for that fifty year period not because they were not there before then they were not to shippers willing and licensed to serve the island but now there are so your client now to get the the other shipper they've got the certificate of publican it's a necessity disqualified and if you had succeeded then you would have been the only qualified shipper my understanding is that curtain according to the pleadings which we have to accept is correct and i have not conducted an independent investigation but my understanding is that curtain a recently was under the understanding that the c p c would permit only one shipper to serve the island and ultimately it learned that in fact the c p c encouraged competition and wanted to have more than one shipper and thereafter side are not exclusive lease and so to introduce competition by making deliveries at all tides with  longer wraps and by making deliveries at lower prices if you want to say the balance of your time yes i would want to thank you thank you to the island except through a single pork is that correct those are the allegations your honor yes and so to speak those allegations well at the motion to dismiss you have to take them as we have we start with his and i trust in the jury and i trust him very well counsel that that may you may be right that that is what we have to determine but i'd still like to hear what your answer is to judge he could his actual question yes there are pro competitive advantages to an exclusive contract which include liability we're talking about safety you've got you have competition a taxi going down we actually did was previously exclusive in what they've done is they've traded out one exclusive provider with another exclusive proviso for us which talks about the pro competitive effect so they are but the big fish was at the courts as well if they revive peaceful lng outlays will just make more competition and so we won't hear you complain about the program head of affects of action so i'm wondering what where there are any pro competitive effects here because obviously the exclusive lease forecloses any competition for the cattle in a freight shipping market well it forecloses competition after but there was competition for this particular lease right well the allegation as if it was it was a rigged or sham competition so let's put the section two issue aside for the moment because right now there's there's an exclusively for ten years and answer the question is this f all within the brunswick reasoning i think it does because well limitless the fact there's absolutely no allegations that there's actually been an impact on competition here what you have is you do have the replacement of one exclusive dealer with another in the supreme court has said the freedom to switch suppliers is close to the part of competition but the argument is that there is now permits to to the regulator has we prefer multiple shippers so there is i guess a window for competition which has been closed exclusively so that's how i understand the argument to be well the argument is that what they're actually saying is that because they they went out and saw the c p c end that they have the right to use santa catalina island companies private property and as the supreme court has said that there is that there is no obligation to deal with people under unless there are very restrictive situations like you have been asked in scheme for example they have asserted what they're what they're trying to say here is essentially they have essential facilities claim which they don't participate in the catalina for a chipping market that's the only game in town well the essential facilities doctrine is a narrow exception and as this court said in ferguson you have to be a competitor and here the island company does not compete with curtain at all and what they said there is the purpose of the doctrine is to prevent a firm with monopoly power and the other company has no monopoly power in what they have said alleged to be i have a question on the section t o that i'd like you to address with regard to the section two conspiracy claim can you help me understand the exact reason the district court dismissed the conspiracy to monopoli and then tell me if you were defending the district court's decision on the grounds the district court upon the grounds the district court relied on it with regard to the conspiracy to monopolize crime i think ultimately on the conspiracy to monopolize claim the court said that you didn't meet the requirements of either aspens skiing or the requirements of the essential facilities doctrine and and i don't think that even pursue either of those theories here on appeal your honor what they said was or what they said on appeal was more we've actually asserted a different claim but when you go back and look at their allegations they don't actually assert that they are seeking a monopoly in any particular entity there's numerous allegations in the complaint and paragraph nine thousand and ninety five and this is a joint monopoly they say things like the island company slash  that one could read the nd amended complaint as a set and not perfectly pleated by any means but as setting out a conspiracy to monopolize especially with regard to the allegations concerning the alleged sham agreement what why why broadly looking at the complaint and the reasons the district court gave why isn't what they have there sufficient if it's relying in part on the sham agreement to as a conspiracy  is that is true that they found that is what the court said but ultimately what the court said in its dismissal the st of many complaint is you alleged a joint monopoly and just as you can't have a joint monopoly you cannot conspire to have a joint monopoly the only power the only party with monopoly allege monopoly power here is a fs and they only got that power after they got the lease and in fact it's unclear whether fs even has any monopoly power here because it has no power to change its rates alternately this entire industry howard to charge other than within what the california public utilities commission has allowed that is correct your honor and they have no you but in this case kirton actually sought these exact same rates and although they claim they're super competitive rates if you actually go back and review the complaint that's all they say is their super competitive what they know what we know though is that they're actually less than is maxed out at that level what they allege in the complaint is that while they're charging close to the top of that level they're actually charging less than that level which means that rates have gone down and there is competition your  case and the court gave them three opportunities to plead the case and to your honor's question the deficiencies in this complaint were pointed out and when the st amended complaint was dismissed and they did virtually nothing to change their complaint between the st amended complaint the nd amendment point other than to add a few allegations regarding essential facilities which they are not even addressing or not even pursuing here on appeal ultimately there's no case that says they have a right to use santa catalina island company's private property we cited to the hodges case which is from the six or it and in that case there was an exclusive agreement that prevented the plaintiff from use from it was a market share participant they said look were for clothes for the market and the six circuit said alternately it is not the egremont that care is keeping you from the market it's the private property owner's right to keep you from the market and that's the same situation that we have here alternately it's not the exclusive provision it's also only that they just weren't picked him out is the classic case of the j good morning your owners albert peacock on behalf of avalon freight services i'll be brief i believe what really distinguishes this case from all of the cases cited by the plaintiffs curtain is the fact that the c they're promoting they're saying that this is anti competitive that they're not saying it's anti competitive they say that they prefer competition this is a unique geographical location where that just isn't possible but what the have to assume is true there is only one facility on catalina island a service avalon that is suitable for that purpose so if the if the island company violated antitrust laws by unreasonably entering into an exclusive with avalon freight they and multiple shippers could use it and competition would prevail so there's no geographic limitation fact  maritime says well we have these longer ramps and we can go in at times when they have on freight isn't using it so they would even interfere with avalon freights activities but that this goes back to the private property owners rights to select who they're going to lease their property to in the point of raising the c p u see is that you asked the question is there an anti competition result of this exclusive and i think it is silverberg answered that but the case also addresses where where the effect is neutral and i would suggest that at worst case scenario the effect was neutral in this case because of the c p use it see sin volve that there has been no change in the service of freight to the customers in avalon there has been no increase in the freight rates to the customers the only adverse effect is to the parties that lost the r f p including  using was the rate set for for catalina freight lines in two thousand and four for fifteen years and as ms silverberg pointed out a fs is charging less than the rates that were charged by c f l within this is  not cases that talk about monopoly talk about a party unilaterally having the ability to control output and rates i don't i don't have any with my short time at my fingertips my final point is asked to leave to a man and this is a unique case because this colby six motion was heard after curtain had to fall ability to conduct discovery before the c p you see to hear testimony to see evidence to see the lease pleadings on this issue curtains challenges that if it were for made if the ship to this i eyed it would immediately offer in lower prices and greater output by delivering at all tides and not only at high tides that those are the allegations of we have to credit those from the pleadings and curtain should be intitled to provide evidence to support that brunswick sads that even though you had a merger or that increase caught mark a concentration and increase the possibility of it and i competitive outcome don the line the plane a from brown silk feared the increase competition because brunch nick was a highly solvent bowling it was a highly saw them company were that acquire in a week competitor of of the plaintiff and so the played of said there's this merger that it is it and i competitive under section seven of the sherman act were harmed because this much more powerful competitors comment of the market and this supreme court's a your harm is not caused by in a decrease in competition your harm is caused by because you fear increase competition that's not an i trust injury here were saying the decide who they deal with them that's odd an antitrust violation and say some cases what what's your response to that thank you ron admit the entire line of cases that are dress exclusive deal on which say that in so cases if you have a contract between two or more parties that give it the exclusive right to serve a market to one party and it substantially closes forecloses competition for a long period and results in an anti competitive outcome such as higher prices and higher for super competitive prices or prices that are higher than those that would be charged in a competitive market and if you haven't and i competitive outcome facilitated by an exclusive dealing contract that  forecloses a substantial amount of competition for a long duration then that can be properly challenged under both sections one and two of the sherman act and that's precisely the challenge we've raised and they also say that given that th sets a cap on what the rates can be and all rates are just unreasonable there can't be any super competitive pricing what's your response to that think two responses st of all super competitive pricing doesn't refer to regulated after having announced that clearly articulated policy that i'm conduct cannot benefit immunity from man i trust violations but here are the stephen c in question the c p c has has articulated its preference for competition so state action immunity doesn't apply and i believe the district court ruled accordingly below