is appeal number eighty three thousand one hundred and thirty four chicago studio randall and others versus the illinois department of commerce and other defendants me please report my name is frank the medical on the attorney for the plaintiff appellants in this matter i'm going to refer to my clients to see a see throughout my clients contend and believe that this particular case involves questions of exceptional ports in the areas antitrust litigation as well as equal protection in short windows anti competitive conduct by state actors who violate antitrust an equal protection clause and under the present they were profitable up until about two thousand and nine the film many different movies in the chicago area were catalysts for the industry so myspace is a canadian film studio based out of toronto and it located to illinois in or about two thousand and nine and it became operational in mid th a lot of them in the process from two thousand and nine to twenty but that the defendants are market participants now what i am trying to understand is how could both of those things be true and other words how can you be a market participant and not be in competition when we made the allegation of a market participant the way we view to  in so far as the illinois film office the only film office was charged with the responsibility of administering the film production tax credit however it will be on that the it went into the marketing and promoting sin a space to the film industry executives and producers and directors we contend that that made it the only film office and market participant because it was now steering  business film productions to sin a space and strictly to but they're not too bad now sorry have you changed your view on that they are not competitors i mean the illinois film office in my class are not competitors but isn't that something you've a did i miss something if it's alleged that way and i say it you know yes it's alleged that way it's it's not proper we're saying we're competitors with sin a space we're not competitors with the only film office but we are saying that the only film office was in fact the market participant when it began to market personal space when it started for example there is an e mail at one point time from the illinois film office where in there contacted fox executives and the movie empire and producing tons of visual and soliciting the business on behalf of sin a space therefore we conten it recommends it this is you ation see it's very different from the state bars it's run by working lawyers or a state you know licensing run by practice not anything this is a state agency run by state employees who are not participating in the market it would seem to me except as directed by state law insofar as state law there is no law which directs the only film office to become a marketing department or a promoter of one entity over the other it's supposed to do it equally and fairly with regard feel you know you've been injured as a competitor but isn't that inquiry for antitrust injury whether there's been an injury to competition yes in in the market and that that's where it would it would really help me is one of our contentions with regard to but how is the output reduced plausibly alleged here when you're talking so you have other allegations a talk about the increase in the film production  chicago because of sin a space so how can you possibly say that out but in the industry or in the market has been reduced given those other to go to judge scudder's point it doesn't matter for an antitrust injury if your client's individual output was produced there has to be a market injury what are your allegations that support  antitrust injury or a market injury and injury to competition here well if we do say two over and as well as a new court case where it specifically and to summarize it when there's just an injury to competition can of production this saudi to production facilities that seems odd to argue that the introduction of competition somehow hurt consumers when in fact the film business for illinois increased so what are your allocations that would support competition being harmed st and foremost that there was a monopoly created  in their monopoly controlled and dominated the market the film industry and it didn't allow for other entities to enter into the market at the same time are you saying that if  want to phrase it they would be susceptible to the same anti competitive results in effect said occurred to my client when all the business was being steered to sin a space by the only film offers and there's no allegation here that your client was excluded from the market that i do not know but you have i noticed that part of it at a minimum you haven't alleged that right separate and apart from the factual what the answer is as a matter of fact it's not alleged correct what i would and if your client ever i didn't see any allegations that your client unlike send a space actually reached out and asked for help and was ever turned down that is correct there's no allegation to that so what's anti competitive conduct at is the only film office direct steer producers film executives to send a space over c s c when it should have been neutral both entities should have been been disclosed to the potential producers directors and executives how is your analysis impacted given your allegations that send the space actually reached out and asked for help and introductions and your client never did well st and foremost it's not that it's not within the realm of the illinois film office to be providing that information or marketing since where do you get that how could that because my letters had statement based on the only film film to illinois i would agree with your honor but in so doing they should be promoting both sin a space as well as c s c and not just responsibility on to direct the producers executors to sin a space at the same time it should have been done for both whether or not my client received any graft so it's your p that it somehow violates the antitrust laws because send a space reached out for help and they got it and you didn't get help because you didn't ask that that somehow violates the antitrust law i wouldn't phrase it that way but this is kind of how i think capsulated our complaint the allegations with it you have the only film office and it's strictly charged with the responsibility of administering the tax credit with that time have both film studios in her purview and she did she was marketing behalf of sin a space soli that's the anti competitive conduct that we allege violates the antitrust the the all three of the parker immunity tests the your the court just goes to look for whether or not the actor in question is a purely public actor or a private actor who runs the risk of abusing the delegated authority to benefit their own interests and then are you saying that the the factors that were applied are the same as what was appl parker or the same that we would look at through any of the three tests that are before the court they're not the exact same factors your honor but the concerns that are within those factors are the same concerns that underlie all of the parker analysis gain and so with the with the parker analysis that st automatic community the idea is that if it's a state sovereign actor they don't need to look behind the curtain because and it's presumed that they're acting for the public interest here defense that believes were entitled to state action immunity are either automatically as sovereign state actors or under the nd tier howley test as this court held in think i read your brief as saying parker immunity applies to you sounds as if you're saying that or agreeing that having immunity may have clients from the way that i've read is that with respect to the state agency at issue there they were applying the automatic immunity that automatic parker going to do the same as in as in parker itself whether or not executive branch agencies receive automatic community which tier they fall under but at the at the way that i understand fuchs is that this court has already held that the heads of offices do but then it is well the the st of the th circuit s that's where howie and north carolina state board come into play how do you have i mean it's a palace that's been delegated state authority to conduct conduct in certain instances on behalf of the state the same private actors misunderstanding of the law the concern is whether the the what that what the case looks what the court looks to is whether the actors in question have that private in gauge when outside of a public role and coming back to that part to the state agency only for a limited purpose it's not that buying gauging with a market for true the actors public role that they then become a market immunity only apply if the legislature intended to displace competition in the program that's at issue it's not if they explicitly intended they don't have to explicitly say explicit or implicit does that have to be a goal i think they will languages of whether it's for foreseeable and i think that i guess it would be an implicit intention that they must've at least intended not intended to expose to preclude anti competitive conduct because the anti competitive results were foreseeable and if that's something we can say applies here given what the legislature said when it created this agency that it wanted to bolster the film industry in chicago and make it more robust yes your honor is that consistent with it in a place that intent to displace competition or a foreseeable result of displacing competition at least within this context here your honor however that work it seems like it's more to encourage competition so there is kind of true i think two elements to this the st of which is if you look at the allegations in the complaint and this comes to what your honour's were discussing earlier there is actually really an allegation of an increase in competition and so there is a question about whether or not the conduct here is actually anti competitive at all and that i agree with go to the next question or is it foreseeable or was it an express intent to displace competition with what the legislature was doing here when it created the agency which seemed to be to encourage competition to do what it could to grow this industry are those two compatible yes or on how because to promote and girly industry does not necessarily mean to promote and grow competition in all instances that may be true to take it to the next step how would it be foreseeable promoting the new or more see the art facility and using that as the as the whole to bring producers to illinois to increase business and jobs and the market here in illinois but you're not agreeing that those allocations amount to actually replacing or displacing competition nope no your honor here c s e failed to allege an antitrust injury they failed to allege that there was  reduction in production or an increase in prices or were under that narrow definition for exclusion from the market tripwires complete exclusion there's no allegations in the a space into the market there was actually increasing competition and increase in revenue in the market and as i believe in try jen this court stated that where there's been an allegation of an increase in competition in the market that fails to allege an antitrust injury but i thought your your ever service and i don't i don't know that i would characterize that as an increase in competition because at least as alleged cinna space had ninety percent of the market right or so it so i i thought that one way to read the complaint possibly i know you'll disagree with this and you can address it is that there really was kind of functional exclusion here through through the steering and different practices like that in other words those actions resulted in sin a space acquiring ninety percent of the market c f c s drops down to a presumably ten item there's no discussion of other others in this particular space and i don't you know i don't know how you say that increases competition when reading the complaint as a whole your honor the c s c has alleged that they prior to sin the space center into the market and they were the only big factor here since basis entry into the market was a huge increase in competition it was the only competition that this market has seen during c f c s existence and so the senate that of itself is an increase in competition and then for the purposes of exclusion exclusion under try gen requires complete exclusion from the market because the purpose of the antitrust laws is to protect competition itself and not competitors and so while those normally plaintiffs are going to have to allege under the reduction in production or increase in prices to consumers and it's only when they've been completely exclude the true injury to competition so your obscure point is that a new competitor entered and that that new competitor finder stand the briefing right brought massive new capacity to the market right as far  as square footage and opportunity for more filming in producing within the state of illinois and that added capacity to the market is what accounts for the growth in revenue production revenue over this period of time left briefly your honor in touching upon the statutory mechanism that allows the only film office and decker to displace competition there is not and he said there is no statute on point which specifically identifies or states that competition can be removed in all essence of what we contend to is that there is no statute to clearly articulate and affirmatively expresses  such they cannot point to one in fact if you look at does it have to expressly stated that can't that just be forseeable as counsel pointed out i'd say it has to be under the  put it has to be inherently anti competitive but i see no language within the statute to that effect in fact if we look at an aspect of deco the statute twenty i'll see six o five slash six o five dash three hundred and thirty five dealing specifically with industrial manufacturing and enterprises it looks in that states that when they're looking to bring in for a foreign entity such as soon as space and fund it with grant money there should be a look at the effect on a local and regional competition it also states that the degree of economic benefits in awarding those benefits to the same entity should be looked at as well i think it's guidance here that the statute does not is not intended to ok thank you thanks to both counsel the cases submitted will take our short recess now