i went to bar breeze website last night that's barbary dot com and one of the one of the claims that is repeated throughout the barbier barbary website in these exact words is and i'm competitors and allege that those websites were there was that it was permissible to cite those websites because the those companies were addressed in the record but the other reason  is to point out the the context in which this case arises barbour's web site states ask any judge attorney or law professor which bar review they took and they'll tell you barbary that means something that's exact language from barbary dot com and it's an astonishing claim for a bar preparation course to make that every judge and every attorney took barbree to prepare for the bar examination i said it's clearly not i don't know about george brown but i don't remember what is what is what does that mean isn't it just kind of offering like advertise is there a conspiracy sometimes that itself is not a conspiracy no but but it's clearly not literally true but i suspect if we took a poll of everyone in the courtroom most of the lawyers here did in fact take barbree and  in fact are aware of barbara's dominant position in the test preparation market and also its presence on law school campuses and and even though it's not literally true it's fairly astonishing that barbie makes that claim at the same time that it claims that it is implausible that the the plaintiffs claim is implausible that barbary has a has such a dominant market position that it's able to use that position to prevent competition in the market for bar exam preparation courses in and in today  for that reason i want to focus on the three allegations in the plaintiff's amended complaint that relate to the threshold question was raised by  the record to help us figure out if you're right about that it doesn't do that and we've dismissed cases before on that basis why should we dismiss this one on that basis and there's no reply brief either right yes that's true your honor and i think i think there is no question that the brief in support of the plaintiff's appeal is is not a model for for an appellate brief it is not ideal but there are various reasons for that including that the the appellant here is a corporation that's out of business and it's allegation is that it was put out of business by the conspiracy among barbering in various law schools to prevent it from competing in the market for preparing for and l l m students to take the bar so this is this is a corporation has limited resources and it spend many of those resources in the district court and by the time you get the this court it's not it's just not a well funded organization it's that it's essentially not an existing organization did you have any involvement in the prove me personally your honor i did not i and to be perfectly honest i  believe i was retained in this matter to hopefully help help improve the arguments that were made in the brief after they were submitted by plaintiff's previous counsel you know it's a little tough to get here and make argument well some possibly get here and make arguments that we're going to listen to if they weren't made in the brief right yes your honor but the fundamental arguments were made in the brief and above all your council understand and i can only answer that i did not participate in drafting the brief for submitting the brief but i do believe that the poor complain about the district court's opinion is in fact it stayed in the throughout the amended complaint that's around the with regard to each of the five new york law schools who are defendants here we're no longer concerned with the new york law firms because they are no longer part of the case but with respect to the five new york law firms that are that are still in the case schools but i'm sorry law schools there is an allegation as to each law school that first the that that there is now a geisha in that barbary conspired with those law schools and entered into an agreement with each of the five law schools to remove to prohibit specifically those allegations are at pages twenty five to i think twenty nine of the supplemental appendix and first the allegation is that a particular eastern region vice president or barbary has relations with the faculty and administration at n y u and that she advised n y u for an l l m students to complain about l l l b e to their well school administration so that the law school administration would prohibit l b e the the appellant from that the i think the short answer to that is i don't know what what whether there were complaints or not i also think that the district court doesn't know whether there were complaints or not and yet the district court determined this is this is ultimately fundamentally the problem with the district court's opinion the district court made that factual finding the district court held that there were various reasons for l b e to have been kicked off of these various law school  were not of the evidence restage first of all were what is what's alleged in the complaint and as i read the district court's decision she based her rationale on allegations that were in the complaint that were in conflict with what you're trying to are i don't think that's a fair characterization of the complaint your honor i think that is what the district court said it did right but the district court actually looked at the attachments to the amended complaint which was which is which it is fully entitled to do but then drew conclusions about drew conclusions about the truth of the situation and to the extent the district court's conclusions conflicted with the allegations in the allegations in the amended complaint that must be taken as true on a motion to dismiss the district court favored its own interpretation of the attachments to the complain over the allegations of the complaint what are the possible allegations of a conspiracy for sexual one of the sherman act in the in the good point what makes it plausible that there was a conspiracy of workers just the the financial incentives that some of the to favor barbree over its competitors in a way that precluded that unreasonably restrain trade and ultimately precluded l b e from being able to sell its product at all on these law school campuses  as to each of the five new york law schools who are still a part of the case the plaintiffs allege in this that barbary makes substantial donation and gifts to the law school using columbia law school as an example this is at page one thousand of the supplemental appendix there's an allegation that barbary has three faculty members who are also professors at columbia those professors make a substantial amount of money teaching for barbara in some cases i believe they they maybe make more teaching for barbara than they do teaching for columbia but but the allegation in any event is that that personal financial incentive gives those law professors an incentive and a reason to to cause the law school to favor barbree to the on reasonable exclusion sorry your honor that is only the first that is only the first component of the conspiracy that is the that is in in reference to the plus factors that are required to to prove a conspiracy within direct evidence that is that is the plus factor concerning a common what's the plausible and we are talking about plausible allegation if you're if you're now up to plus factors that there's a conspiracy in the first instance yes that the allegation that had a faculty member gets paid money to teach a barbary course is is just doesn't do anything for me and i'm i was on the  way so the supreme court sort of instructed us how we had to look at these things we got it wrong here we're mindful of what tom lee has is telling us twamley being in an an case says you know and my understanding of twamley of of the supreme court's ruling in two embley is that the plaintiffs burden on at the pleading stage on the motion to dismiss is to move the is to is to n think in the in the supreme court's words the conspiracy from being merely conceivable to being plausible and i will i will try your honor the at columbia specifically barbara makes large donations to columbia itself barbary employees law professors from columbia to teach for barbary and and barbie also columbia also exchanges information with the other law schools who are members of the conspiracy about the the the market for bar preparation courses what does that mean so i want to follow up and ask you what's the evidence of court nation among law schools not just at columbia but within what you and the other new york law school columbia and its representatives i'm paraphrasing have have exchanged information about l b e's bar review program business and access to various other law schools among others with the diff with the other defendants law schools were merely sharing communications about l b about the the appellant there would be nothing wrong with that but the allegation is in this case they they conspired together with barbree claiming they alternately removed l b from the law from the campuses so it could no longer market its product to laws students on campus and and i can be i'd like to use columbia as an example  you do when did it do that in the fall of two thousand and ten when did for him i think fordham was the was sometime in two thousand and sixteen and and the the district court found for that reason that the because because of the the acts were not simultaneous because they took place over a number of years that they were not parallel but i don't think that's a fair reading of the of the case law on the sherman act i don't think you need be perfectly simultaneous to reflect parallel conduct across the law schools in in the way that they treated l b in the way that they ultimately removed b e from their campuses once l b e started to have a foothold there on that particular campus and started to threaten bar breeze monopoly and dominant market position  understand what the supreme court was saying that your allegations of parallel conduct do not make it yes rather but it's in this case it's parallel conduct with plus  factors it's not simultaneous your honor but i think they they they all did the same thing over the course of a few years which was when when l b e began to have some success marketing its product to law to law students on the campus  spragg and we're going to hear from the other side and then you can stand up and rebut them good morning your honor as may it please the court you know if i've got that podium i think comes up a little bit it's i see that's how it doesn't give you much but that's all right i think it please the court my name is peter julian from skadden arps and i represent the five new york law schools in this appeal at the counsel table with me is brian burgess from goodwin proctor and he would show restraint of trade that is a harm to competition or to the competitive process as opposed to simply law schools favoring one one competitor barbree over another competitor l b e in deciding who would allow who it would allow to in this complaint really that the schools talk to each other about l b generally or specifically about whether or not to deny l b e tabling privileges at any of the schools and there's no allegation in this complaint barbree somehow walk a straight a conspiracy among the schools this is no allegation the barbie talk to each other talk to the schools about what other schools would doing with respect and and marketing on campus that there simply is no direct evidence here of a conspiracy so l b asked the court below and asks this court to infer a conspiracy from indirect evidence but there is no real even indirect evidence of a conspiracy we talked you talked a bit about  parallel conduct l b it hasn't please hasn't plausibly pleaded parallel docked because it's pleaded that it was terminated or denied access to the law school campuses over a period of six years and that isn't competing pharmacy networks occurred six months apart and the court said six months apart according to the language of the eighth circuit the allegations lacked temporal proximity here instead of six months we're talking about six a six year time span between the columbia when it first denied or allegedly first denied access to its campus in two thousand and ten but i'll be equal still tabling at fordham into two thousand sixteen the complaint doesn't allege when elby lost tabling privileges if at all at n y u and cardozo but the earliest allegations of its interaction with these two schools are in two thousand and eleven cardozo and two thousand and twelve for n y u when the schools allegedly declined to invite l b to table on their campuses and l b doesn't even allege that ever at any table in privileges at st john's but just that it reached out to st john's in two thousand fourteen and in two thousand and fifteen to inquire about getting tabling privileges in l and st john's didn't respond so i'll be easy to experience with each of the different law schools is not sufficiently proximate in time t constitute parallel conduct among the law schools and that's enough to dismiss antitrust conspiracy claim because parallel conduct is the foundational building block on which to plead and  trust conspiracy when you're trying to plead it in inferential way in an indirect way as opposed to with direct evidence without the parallel can't rely on what are called the law school agreements in there is there anything in those law school agreements that would reflect that there was any kind of agreement or coordination activities by the law schools in new york nothing they didn't put in law school agreements and they refer to them in there in the complaint sort of a vague way i don't know i don't know if there's an actual written agreement in fact i don't think that i'll be knows that because i think they've alleged that the the oral or written so i don't know if this is a something in an agreement that's out there but basically what the allegation is is that barbara agreed with each school to to pay the school something or pay the pay the administrator something in order to to have tabling privileges at the campus and as we've talked as you talk about it the i mean nothing wrong with that individual each you know i presume barbara has an agreement with the school because an awful resume shows up with a table you know in the fall without having some arrangement with the school that it's allowed to do that so it does have an arrangement with each school perhaps but there is nothing in the allegations really that says that those agreements have anything about communications as between the schools and you know what i think that's i mean i don't know if that answers well the rico analysis a little i mean it's a little different but it's similar enough in so far as the you know for the enterprise aspect of it we have to have some agreement that they agreed to do some something together a enterprise and so i suppose of the it's not i don't know that in the rico cases they talk about it that way but it would be a similar kind of analysis would seem to me that you would have to find some kind of agreement among the schools to to to  to pursue a common goal through a rico enterprise and i think this case is says that we go on a process to some long jeopardy there has to be something about the enterprise that separate and apart from the schools and barbary and i don't think any and wire fraud is alleged to be intended to defraud l b e there are no allegations in this complaint that anybody said anything to be either it was false i mean really no allegations at all about the statements that were certainly you do it what was the story with n y u and it was interesting because one of the you know the complaint does have a lot of exhibits and exhibit thirty nine to the complaint is it is a e mail exchange between  why harvard isn't going to let him table on campus but she says to him and on a personal note i was also concerned about the litigious posture you mentioned against the n y u students during our meeting i mean this is the kind of thing i mean these this is the complain puts the lie to the plausibility that there was some you know if areas a conspiracy here it was it was basically there were there were other reasons in the in the four corners of this complaint it isn't that these are reasons that  good morning your honor brian burgess to address the claims directed against barbary the district court correctly held that l b could not stay to claim under section two against barbary because among other flaws the complaint does not plausibly allege that barb dangerously close to acquiring monopoly power in a properly defined antitrust market there are a number of the complaint fails on a number of levels first the allegations with respect to the product market are plainly inadequate the complaint effectively just stipulates that that there is this independent product market that is comprised of bar review courses that are specifically marketed at al i'm students but this court's cases make clear that even at the pleading stage much more is required than after you have to engage in an analysis across alaska steve demand you have to determine whether they're reasonably interchangeable products and they can point doesn't do any of that and worse the allegations that are in the complaint strongly suggest that this is not a plausible product market because you have you know l m students take the same bar review take the same bar exam is any other students l o b alleges that up until two thousand and nine there was no such thing is an l m specific course the that barbara didn't come on line with the course and until two thousand and thirteen so the suggestion that you know even though this isn't a new product market or new product offering is now so differentiated from general bar review courses that they no longer even compete in the that i mean you have to ultimately show that there is going to be an effect of effect on competition in the market and the fact that there is no properly defined market and no ability to show competition i think yes would defeat it in addition to the fact that as my colleague indicated that there's no conspiracy and so that's an independent basis for it but i agree that that could that would undermine that claim to the extent they haven't made a showing of the effect on competition their inability to define a proper product market would also undercut them on that issue even in  addition to the four with respect to defining the product market there's even if you sort of take you know argue endo that the market for that course is directed specifically at alloa students could be its own market there's still insufficient allegations to show market power all the complaint indicates on this point is there's an assumption it assumes that barbara has a market share of eighty percent which actually conflates between that in the bar of your market and my friend in talking about the website this morning in addition to being outside the record it notable that he spoke about general bar review courses not anything specific to bail out market which is a stance simply the product market that they're focused on here but all there are sort of is a blank assertion of an assumed market share and other allegations in the complaint undercut the possibility of market power first you have in the exhibits of the complaint there's clear identifications of competitors that are never addressed in the allegations including major bar complaining about l b e being unfairly treated views of the kaplan not views of the barbarian so but there's no effort in the complaint to engage with that other facts also sort of undercut the notion of market power including in particular that repeatedly alleges that barbara engaged in substantial discounts was offering major discounts in an effort to attract away its students but as the district court correctly recognized that's not the behavior you generally would see if someone actually had market power it's how you would actually go about competing if you don't have it in addition sort of just finishing up the point on market power and even if you could properly a wedge and adequate market share you look to other factors such as edge and with the discount should also look to whether there are real barriers for entry conclusory allegations by l b that there were barriers to entry here but once again the there there are actual allegations and factual allegations undercut that given that this is what they say is a market that was developed in two thousand and nine and yet we know that there are multiple competitors that have entered into it including barbary including kaplan and their major sort of theory on that seems to be that well it takes a while to build up the relationships in the course materials and so on to establish a real presence in the b market but even if you accept that is is relevant to establishing a brand new bar review course that no way has any sort of bearing on whether established or review providers could cross over and adopt this particular l y m course so for all those reasons we think the district court was correct to hold that that l b had not adequately alleged in the bill market power to establish a section two claim and in addition i'll just as briefly mention we noted in our brief that even apart from that the complaint does not adequately allege that there was any engagement in monopoly conduct which is of course a separate thing that they have to do to bring a viable claim there are two basic and i think sort of the overriding problem with their allegations on that score is there's just no effort to demonstrate harm to competition as opposed to harm to a particular competitor l b e there are two theories seem to be one is a is about product disparagement that barbara was saying things that they market as opposed to just on one competitor this court has in the arabs decision has outlined sort of the test that has to be passed on a number of factors that must be met but among them is you must you know clearly a wedge at the pleading stage were put forward evidence weight later on that the statements were clearly false and clearly material as the district court quite rightly recognized there was no indication about what the statements were in the vast majority of instances they're just general assertions about defamatory comments and to the extent it's possible to glean what they were referencing it seems to be just complaints that barbara was saying that l b e was and was not established was not doing as good a job in providing in preparing students for the bar exam which is you know sort of opinion statement they couldn't possibly give rise to a section to claim their other theory i think is quite literally that we competed with them that we that they had they were the ones that started this idea with having specific course and we decided to offer our own course and compete with them and take away sales from them they had the sort of allegation that we stole the course from them i think it's implausible on its own terms the things they say we stole are sort of basic features you would have for any bar review course and in addition they know that they were sort of public advertising the features of the course but even apart from that a business tort a claim that you were sort of stealing a competitor secrets is not something that generally gives rise to a section to claim because again the issue is about showing harm to competition to the market as a whole for closing competition the market not just injuring a single competitor if the court the court has no further questions we urge you to affirm the district court thank you i just want to make a few points in rebuttal the the first is the counsel for the new york law schools pointed to a and e mail that's attached to the first amended complaint and he made the exact same mistake that the district court made which is to read that e mail to determine what the truth of the situation was as between the author of that e mail and l b and then and then to decide that having decided what the truth of the situation is the allegations must be false that's not the way things are supposed to work on a motion to dismiss under rule twelve b six the allegations need to be taken as true complaint are that the law schools used the are they to use the purported complaints of students which were which were i'm sorry the last calls you use the purported complaints as a pretext for removing l b from the campus so for a for one of the for a member of one of the last schools to refer to a complainer to refer to a litigious position or whatever they refer with your honor's earlier asked about columbia law school specifically with regard to columbia the allegations or the of the complaint are that the first that in the fall of two thousand and ten l b e held  a tabling session where it got the contact information for a number of l m students immediately after that i think the next day or shortly thereafter the l b was banned from columbia's campus but because it had the contact information of certain students some of the students ended up signing up for for the course and the allegation is that one hundred percent of the students from columbia who took the l b course successfully passed the bar exam so b to have been banned from columbia's campus at all other then at least it's a plausible inference to draw that the l b was banned from colombia for the reasons set forth in the offered a one size fits all bar preparation course targeted to jade two american born native english speaking students who had taken three years of law school as well as foreign born l m students who may have only taken one year of legal training in the united states the innovation in the in the the good idea behind l b e was to offer a course targeted specifically to foreign born  non native speaking l l m stood non english speaking non native english speaking l m students by giving them specialized instruction materials that took into account the fact that they may not have taken a full law school curriculum  filling in the gaps where where and l m student wouldn't have a complete background in the subjects that are tested on the bar and i think you know on and on there are a number of there were a number of  innovations that l be put into its course specifically designed to to help for and l m students pass the bar thank you very much thank you thank you all three of you all of you who are here will reserve decision in this case