whether the defendants conspiracy should be condemned as per se illegal under section one of the sherman act now our national economic policy favors a competitive market in which individual entrepreneurs are free to make their own decisions the supreme court has interpreted the sherman act the central legislative expression of that policy has held that there are certain categories of conduct that are so and physical to that principle that they are to be condemned as illegal without consideration to their effect in the market one of those categories is what's called the paradigm group boycott a paradigmatic group boycott is a conspiracy that denies a firm access to a necessary supply or market and the conspiracy involves two things first it generally involves two or more levels of competition and it involves horizontal action at least one of those levels the firm's rivals the firm's customers or the firm's suppliers this is a paradigmatic group boycott m c p s claim does not ask this court to expand the categories of per se all the rest of it that if you just look at the documents and con themselves they are per se illegal yes are per se illegal conspiracy is the defendants start among each other and in m c p one the court said that the jury gets the side whether there are multiple actors or single want to do so for purposes of this appeal there are multiple actors they conspired with each other to a poor oppose the entry of my client they achieve that in multiple ways but two for this purposes for this is that they got the insurance companies who are called the payers to agree not to contract with mc epeat they also got the payers to agree among themselves to hold the line on those commitments in our papers express what explain why it's necessary to have that hold the line they also conspired with independent doctors to deny patient referrals to anybody associated with my client's hospital that is the p card there is horizontal action both cases come out the same way had they all just merged so that's a joint venture everything would be the same b s if they rule everything your argument wouldn't change one bit had they all merged the only thing that we wouldn't have is we wouldn't have an argument over the ancillary strength doctrine right because they would be a salinity they'd be a single entity but what we would have here your honor is what was lacking in total benefits versus anthem which is this court's decision in two thousand eight where they say ok you have a hub you have a single actor at the hub you have multiple vertical restraints but you have no room you have no agreement among the other parties to see the spokes here the hub is the defendant let's assume that they merged let's assume that there kettering who has merged their parents subsidiaries they have a commitment from every one of the payers not to do business with us we have evidence that the pay they facilitated an agreement we have evidence of the room that gives you the horizontal conduct at one level of competition our mutual customers the insurance companies so if they were merged the evidence demonstrates that this would be like the total benefits anthem case only we have around and the fs this court said if the plaintiffs there had had a ramp it would be per se but they don't when you look at these situations  along and then in the end made threats and promises and all the rest of it but let's say you didn't have these discussions and you didn't have the reds and all that happened is that the contracts that were anthem had an agreement not to expand not to add us as a quid pro quo for most favored nation clause that they got united tells us we can add you if anthem can you those are not the contract that is expressed if you want me if you say that my my case doesn't have those then we would have a different argument as to why it's per se but we think that this is one of the problems the judge rice had he identified the wrong restraint at play he said it was this route for volume which no one has really ever defined below because there is no record volume times and a lot and they often are in connection with exclusive dealing in that often not always benefits consumers that's why the rule of reason so often applies you trying to figure out what really happens right but what we have here is none exclusive deal we don't have a network words only the phone it's conduct it's the defendant's six hospitals from their biggest rival ketterin it's children's hospital it's everybody but us it's not a narrow network it's every bed in dayton ohio every hospital bed except the twenty six beds that my client at that's not an exclusive deal and is the is not an exclusive deal in case and so all the pro competitive arguments for why you have a sluice of dealing don't apply here and to get to your but your question judge right if all we had was the panel limitations which is a contract provision that says if you add a single hospital then we get to we can terminate this contract then you'd have to look at the evidence of how the payers viewed that as a bar they viewed that as because the defendants the record shows had between fifty six and fifty eight percent of the market during this time period each of these peers viewed them as a must have i have to have them in my network so then you get to look at the testimony which we elicited from them that they viewed this as a bar cigna in its own e mail says we can't add a hospital unless the defendants approved just to make sure i'm getting this case  single entity but you would then say you still have a group bought boycotts through the single entity is that the point you're making yes so that just just so you hear why i'm asking this question you know i'm a little skeptical of the panel's decision the first time around and i feel like we're we're trying to shoehorn things into what i'm not sure really made a lot of sense in law the case horizontally were a lot of cases still open just as it was open with judge rice viz a viz judge black it's open here and so i'm asking you would you be prejudiced if your are your arguments prejudiced if we say we really think this should be treated as a single entity now we'll address everything else you have to say or is that really hurtful to you it will it's hurtful to us it doesn't affect our claim because we're just trying to figure out you see it is really overt it would have been the same way and if they'd merge surely it would have been a single entity that takes off the prior panel's decision that's all they said so then what am i missing i judge black in two thousand and fourteen said you played a proper theory if these four get together and they boycott with others that's per say if they were a single entity if you said no i think as a matter of law the single entity we would not we would have had the opportunity then to say ok you know what then perhaps we want to we want to play we need to plead both per se and the rule reason because we have the per se to cover the pay or the room but we didn't have that we were our theory was justified by judge black we build our record on that if we've got this court in m c p one to affirm it's a question of for the jury if the jury decides and agrees with the that they're a single entity then they can't be the horizontal action that title's us to per se that would leave us with the payor agreement the room which we say judge rice improperly excluded it was pled and that's paragraph eighty eight of our men the complaint we say that the defendants orchestrated group boycotts plural and paragraph seventy four a we specifically identify every pay by name that they boycotted with and they entered into agreements with them not to do business with our clients so we played it it was new evidence it wasn't new evidence it was not a new claim it was evidence of the claim your honor so just sudden  we think that we would be prejudiced if the this panel decided to abandon m c p one but because we we build our case relying on that this was going to be a per se but even if well do that we still have the room well the first time from the district court that argument because judge black but it was a single entity he did but this court because from understanding that this core corrected them judge blocked thought that the point about the amendment you had time then to amend it that's the point at summary judgment after he said i think it's a single entity why would you ask for leave to amend them we asked as opposed to appeal both well the sky every was closed we had built the record we hadn't identified experts but we thought that he was wrong and this court agreed with us in m c p one that they were wrong that is a jury question we raised the question of jury about whether multiple or single but that being the case judge rice's decision that plausible justifications always come into consideration in group boycotts good morning your honor is may please the court for its representing the apple lease plaintiff made a critical strategic choice at the outset of this case to assert only a person a claim and as a consequence the plaintiff has to show the premier's conduct here clearly falls within the very limited and narrowly defined category of per se legal activity that's a very steep hill to climb surely if we were dealing with a single entity but also in the context of a legitimate joint venture  the obgyn the ultimately galatea of the conduct issue here is not the issue before this court the question is whether the plaintiff has pled conduct that can be treated as per se legal and the supreme court's decision d addresses how the conduct of a legitimate joint venture is to be addressed plaintiff here doesn't challenge the legitimacy of the joint venture doesn't question that it's a legitimate joint venture with pro competitive justifications and in that context the supreme court  instructed to consider whether a challenge for a strain is either hore activity of the joint venture that is it integral to the running of the joint venture or whether it's an ancillary restraint which is to say whether it is whether there is a plausible competitive justification for it doesn't mention several times that involved a single entity no in fact in footnote one of the supreme court said that that it was not considering the single entity question but what the supreme court did say in dogg yes well because once you have a legitimate joint venture once that's either established or conceded then the conduct of that joint venture is treated like a single and rather th like a series of competitors we have this prior decision that says there's a fact dispute about whether it's quote a single entity or that the test for whether something is a single entity is different than the test for whether it's a legitimate joint venture so i certainly agree with you that we should have prevailed in the first appeal and this energy here satisfies the test for a single entity the test for that under proper while the under american needle do you have unitary decision making is there a decision held that there was a tribal question about that but not about the separate question of whether it's a legitimate joint venture first point if isn't challenging that has never contested that and second it's a separate test the question whether it's a legitimate joint venture is or whether it is an integration of resources for a pro competitive purpose and the supreme court in dogs or in footnote one said it wasn't addressing the single entity issue and that but they had formed a new entity and they were operating that as one and they weren't competing in that market and in the first round of this case all of those issues were subject to question think in the first case in the first case in the first decision in this case the court found a genuine issue of fact based on a particular report a consultant had gone in and essentially interviewed the participants in the premier venture about how well the integration was going and the first panel relied on that to find that there was at least a genuine question about whether the single entity test was satisfied but the joint venture test is something else and the supreme court in dogger expressly said that echo on there was not a single entity but because it was in an uncontested joint venture it was treated as a single entity for purposes of the n i trust laws and that its conduct would therefore be subject to the rule of reason if a particular restraint was either a core activity integral to the functioning of the joint venture as the rate for volume causes clearly are here because they go to the pricing  premiers product or if you had an ancillary restrained if there was a plausible pro competitive justification related to the activity of the joint venture at a minimum the rate for volume causes here satisfy that standard  do the non compete pauses and the other restraints that the plaintiff is challenging here i don't know if this hope my colleagues will help me but i'm afraid it's a little clueless on the question the ancillary restraint dr does that look different when you're applying it to a joint venture from when you're applying it to quote a single entity is there any because i think a kind of asking the same question judge white's asking you know we have this oh there's a fact dispute we can't teach trees as won over going to call  f a legitimate joint venture and it looks like there's almost a venn diagram the same arguments are being used and i'm i'm just trying to sort out what the critical distinctions are and so one way of thinking about it from my perspective is i understand you're arguing in a spirit strain is that even a doctor in the vailable for a single entity case but i think if if we were dealing with a single entity then the internal a single entity is incapable of conspiring with itself  visual cues are saying not really i think the awkwardness the awkwardness here as you pointed out in mr ripley's argument is that this does look an awful lot like a single entity the first panel held otherwise but if we were dealing with a single entity then you wouldn't have to apply the ancillary strengths doctrine because the complete because the components of the single entity aren't capable of conspiring with one another buick and pontiac don't conspire with one another  they're all part of a single entity which is g m and we think likewise here but taking that as president if we're past that at a minimum this is a legitimate joint venture now the the the members of a joint venture could in theory violate the n i trust laws by conspiring with one another but if what they are doing is an ancillary restraint that is it has a plausible pro competitive justification that goes to the purpose of the joint venture then that's subject to the rule of reason not the per se rule which is the only theory the point if it's played here so i don't know that if that answers your question i think that understood that argument before but i understand why judge white's asking  which he's asking and i'm i have the same funny reaction to the case i wish we had it at the first stage and you know i love the case for what it's worth you know the panel the way this works is each panel gets to decide whether to hold a case treat it as a must no but technically law of the case you can do whatever you want i mean you can say you have to show clear error before you change your mind at the same level of a case you obviously can't reverse someone above you but the next reviewing court never asks whether there was clear air that you want to know what the radio answer was and i feel like we're looking in the wrong place for the radiance or well and in fact the point if you're filed the motion at the end of the breed thing asking for this to be treated as a must panel case and the court denied that motion so here we are with a different panel the panel is as you suggest free to revisit the determination in the earlier case and i think it's a very clean and simple way to resolve this case to say that this is in fact a single entity if you look at the joint operating agreement it states premiers overall vision and goals it grants premier the authority to manage the hospitals collectively section seven of the joint joint operating agreement requires revenue pooling and allocation of income according to a set formula across the entire venture of the entire single entity if you will and premier has carried out that integration in its actual operation i would point you to the argue report which is in the record document one ninety dash three talks about the various ways in which this integration has been carried out services have been consolidated and efficiencies have been game and so what even if you were two  judge rice properly held certainly didn't abuse his discretion in precluding that point from trial from trial because it wasn't put in the complaint mr ripley pointed to a paragraph of the complaint that alleges orchestrating group boycotts but if you read the complaint what that's talking about is the alleged orchestration of a group boycott by the various premier entities vertically with the insurers there's no allegation in the complaint of any horizontal agreement involving the insurers or the doctors and as this court said in the supercell case it's critical when you're alleging the conspiracy and certainly when you're trying to bring a per se claim to specify what the the concerted activity is who conspired with whom that mentioned in passing that the mr ripley had had made these arguments but that was not a basis for the prior panel's decision the prior panel was quite clear that the only issue it was deciding was in fact whether there was a single entity and when this case eventually reached judge wright and as we approached trial judge rice properly precluded those claims from trial because they weren't alleged in the complaint they were first raised at the close of discovery mr ripley in a deposition frankly admitted that these allegations are not in the complaint but are ones that rather arose during discovery that's it page thirty six thirty seven page fifty five and under the court's super sulky decision that's critical because it's the nature of the horizontal conspiracy that drives the litigation of the case and to assert that after the close of discovery is simply too late and judge rice properly held that premier would be prejudiced by this point allowing these claims to proceed it would require reopening discovery reopening discovery involving third parties the insurers the doctors and so these claims are simply not not brought in the complaints were asserted as a factual matter causes in those contracts was that the doctors who were leasing premier's space would not be competing with premier while doing so the consequence of that can and can be a vixen that's simply the enforcement of the non compete clause and the non compete clause is at a minimum an ancillary restraint if we're in that the world of a legitimate joint venture it's an ancillary restraint because it has plausible pro competitive justifications related to premiers joint venture it's protecting premier's investment in this office space and so mr ripley is focusing on the quote unquote eviction but that's simply an inforce mint mechanism for a widget in the non compete clause in these contracts the court has no further questions right happy to rest on our the argument in our briefs i think we do not think thank you for bottle case we can take a phrase and have it mean different things in different contexts under that says in footnote one it reserved the single entity question that was that issue in this case the first time around so i don't you have what no one in front of you yes i do your honor  footnote one the there's two ways for us to of attacked the defense conduct here we could have argued that they were that the joint venture was a sham a complete sham and that's footnote one it says that the petitioners there do not say that it's a sham so we said but of doing a sham required thing that here either i'm not saying that they're sham so we don't have that way to undo to say what they did was wrong so they're a joint venture but in dogger it was an integrated for joint venture shell in texaco gave up everything upstream from their destinations they gave up their trade names to a lot they gave up the refining they gave up their distribution they put it in the one serious g o c joint operating company that distilled the petroleum distribute the proly and set the price and justice thomas says although that is price  fixing in the literal sense it's not price fixing in a trust sense so this that was an integrated joint venture m c p one says this is not in an it's for the jury to decide whether this is going to be an integrated joint venture so dark or gives collaboration among actual or potential competitors and so that horizontal actions sometimes would involve conduct that would be determined per se illegal they can ovoid  by showing that the restraint is reasonably necessary not plausibly necessary what my colleagues my defense counsel said that's what judge rice said plausibly necessary he put pick that out of a hot hand book by a private practitioner the case law says reasonably necessary then judge sort of miers concurrence reasonably necessary the eleventh circuit in the f t c versus your employed case said that that means that the restraint cannot suppress competition more than is necessary then to achieve the objective that's how that's what happens with a joint venture like this this is not integrated your honor you look as was this were these commitments to exclude my client from the market necessary to achieve a legitimate objective of the joint venture and judge blacks that's an eviden it's a mix question of fact in law the judge black rightly said the defendants didn't meet their burden and m c p one and judge black henri men said there is no plausible justification for a joint venture don't know what competitor can do with judge black's decision but you know the question for us is what the right answer is we just don't look at it is to judge rice correctly decide he was clearly wrong what do we care i mean the question is what the right answer is just our level yes and it so happened that judge black recused it's unfortunate but that has to be the way you look at it yes your honor and the right answer is that one of the ancillary strange the defendants had to demonstrate that a commitment from an paying insurance companies to contract with our client was necessary for the joint venture to a sea achieve one of its pro competitive synergies and they have not articulated a single one of those nor the questions