distant criticism of your expert and expert witnesses testimony how that would fit in the submarket when i start they are so so big picture subject to a stipulation in markets and the district the court's opinion below indicated that it recognised that not only was there a a market defined as v h r's but there were two sub markets including franchise dealers and independent dealers and  they are made up of dealers franchise dealers and independent dealers too so consumer purchasers are not included in that neither are so called big purchasers business and insurance group purchasers and so one answer is that the trial court to recognize the allegations were there in regard to the sub markets that should be taken as true it ignored those submarkets for purposes of summary judgment in the short answer is all of the exception that i had in mind but yes so intervention in regard to the franchise dealers the c p o information would be relevant it is crucial to point out that in calculating foreclosure share dr singer did not include any foreclosure share to the do not attribute any foreclosure to the c p o agreements for the years two thousand and eight through two thousand and eleven so that that that data the argument about that has no applicability to two thousand and eight through two thousand and eleven and whether there was an adequate paragraphs well in a series of paragraphs plainness made allegations that were inconsistent with treating him didas reports as part of the same market is v h r's and specifically plaintiffs alleged that carfa ninety percent market share in a series of allegations that is not consistent with treating in vegas reports as part of the v h m market and second in two paragraphs specifically plaintiffs defined v h r's these privately sold the h r's that are the relevant market as having additional information beyond an invidious information and those paragraphs are forty seven of the second amended complaint and paragraph five which defines v h r to include service and repair records  information that bad data doesn't include service and repair information that is collected at the cost of tens of millions of dollars a year by carfax and experian and i want to be very clear about what happened here because there was a stipulation in order that was designed to limit the issues that the plaintiff had to litigate to streamline the litigation and it said that plaintiffs would prevail on relevant market and market power and that meant that carfax for purposes of the summary judgment motion had a ninety percent market share it also meant that data reports based purely on them be to state that were not part of the relevant market and as i said there are allegations in paragraphs five and forty seven of the second and  a definition of the market that did not include in vegas reports that was consistent with plaintiff's argument plaintiffs and then an opposing didn't focus on that issue because carfax hadn't raised it carfax raise it for the first time in reply there is no moral argument plaintiff's don't get another brief for the first time carfax invites a violation of the stipulation and ordered it says market share and market power would be market power and relevant market would be resolved in plain his favor so it's not that surprising that the court became confused because it was an argument yes for the so reply we asked for the opportunity for a surrebuttal expert report and the expert report did address these issues i do not believe below that we asked for the opportunity of us or apply i know you want to reserve time let's hear from you basically two types of agreements the c p o agreements which are certified pre owned used cars those are agreements between carfax and the car manufacturer invented the term pre owned geniuses like interests of says this is going to just district court found that the majority of those contracts were short term and therefore could not have been for a closing that's one of the basis of the court's decision because the exit their expert included those the effects of those contracts in his analysis and didn't make a provision for not including them they haven't on the on appeal they don't argue that judge nathan got it wrong in terms of the term they they argue that there are some other reasons why we should be concerned about it but they don't argue they conduct in those agreements one is that carfax would be the exclusive v h r that would be advertised on what we call banner ads which are the ads around the substance of a web page so they're not specific to the content of the web page that if a big if a v h s going to be advertised in that space it would be carfax the judge found that that was not foreclosing relying on c d c technologies  the well next decision which is a southern district decision that that's just advertising there were other ways for car factories competitors to advertise their products and there was no bottleneck there no foreclosure the second type of and and by the these websites don't sell cars auto trader dot com doesn't sell cars there it's basically an online version of classified ads they collect people people who have cars put listings on that website that they're selling their car it's a it's a collection of advertisements for cars for sale so the second type of conduct was if somebody advertise a used car for sale and there was no vehicle history report carfax would  provide a little image showed a badge that you could click on if you want to buy and d h are for that car so for example just sack if you were looking for a used car and you were on the website you and you were interested in having  vehicle his report on the car that you were looking at you could be might be intrigued by that advertisement and you would click on it and you go in a car in take it a car faxes website you have an opportunity to buy be a charm judge nathan found that conduct two was not for closing and and i don't think that's disputed on appeal either which brings us really i think to what remains at issue which is the agreement that when a seller of a used car has already purchased a v h r for that car so if a judge that you are selling a used car and you had purchased of the h or if you are a used car dealer and you already had purchased of each are you might like to let  advise your customers or people interested in that car that there is a v h r that will already be available to them for free and the agreement between car facts and auto trader cars put a badge on the website again that would send you to car faxes website and you could look at the freebie h r for that car your adversary's said that in your papers your initial round of papers you had assumed that this these foreclosure analysis we he outlined also the reasons why looking at the rest of the record there was no foreclosure but then and one of those reasons by the way was putting a badge that links to a v is is not for closing it's just like advertising like the other forms of conduct that judge nathan found we're not foreclosing but putting that aside professor will and said notwithstanding that that we don't think it's for closing he did an analysis and what he looked at he did not attempt to look at the whole market one of the one of the problems was that there were there is no evidence there was very little evidence in the record and this was plaintiff's burden to develop an estimation or to provide evidence about what the size of the entire market instead what professor willett did was he said we have data from carfax on what they refer to as a vin level so vehicle identification number every car has a unique number and professor willing had data from carfax for every vin that was submitted as a c p o car to car fa and every vin that was advertised by a carfax customer on one of those two websites and he compared he basically looked at those unique even in the allegedly foreclosed involved in the allegedly foreclosed contracts and compared it he assumed each one of those advertisements was actually a sale of a v h r that would be foreclosing in other words nobody else could would buy the h r from any other company for that car so he assumed that they would be foreclosing and then he disappeared that not to the entire market because as i said plaintiffs didn't develop evidence about that instead he compared that to carfax his own sales of v h r's in other words what percentage he looked at a much narrower or if he wasn't trying to define the market he looked at a much narrower set of circumstances just carfare just we knew when we had the data and this is one of the reasons why we pursued this early summary judgment process rather than have to take the depositions of five hundred car dealers and there is going to be a huge amount of litigation we knew that even as a share of our own and d h our sales putting aside the rest of the market it wasn't sufficient that's why we wanted to get those facts in front of the court as soon as we could i want to just make sure i dress up markets before my time expires so there are a number of points on s markets first of all i'm i'm sure the court is aware of the district court does not have to resolve or write in her opinion on every issue that that's presented  sub markets the evidence we put in was first of all some markets are not economically relevant to the question of foreclosure where the product is the same the the economic issue and foreclosure is does do the foreclosed parties have enough space in the market to to reach and a comparatively efficient scale in other words is there enough room to sell the product that they can build the company to to compete and be a constraint that you can have under very small market if the same product is being sought so so if we had a geographic market and hot dogs downstairs were were one narrow geographic market but there are hot dogs around the rest of the city that are being sold and you could sell your hot dogs somewhere else in order to to reach the competitive scale that would allow you to compete out in front of the courthouse  that that would not be foreclosing and there's no allegation here and no evidence in the record that these products are different independent dealers by the same v h r's that franchise dealers buy the products or that are the same so first of all as an addict stand in my to understand you that you think the district court by treating the market as the the overall market which the district court plainly addressed really adequately dealt with all the sub market issues is that your position yes that's right you're that's mean that you continue with your argument ok so that the first point was as an economic matter where the products are the same the sub markets are and he here are not relevant  the second issue which i think your honor raised was this question of the flaws in the plaintiff's expert report and how they play out in the sub markets and i'm not sure where we came out after  the question as sceptics thought that since they hadn't been factored into a few years of the expert's report he didn't matter you want to address that so what i would say about that honor is they they certainly i mean there's no dispute that they were factored into some other years on the yes and so what are we to make of the experts failures i think i respectfully submit that's not my  issue but let me get back to the the other i think the most important failure here was that for the years that the c p o agreements were not included  question of what sub markets there's a difference in the language when when the case came up on appeal in the briefing appellants defined the sub markets as being consumers versus dealers and then it changed on the reply brief and so for that reason as well leave we think that some organisation in the reply brief they went back to franchise versus there's no customer market pleaded in the complaint consumer there's i don't know why i don't i don't know why they did that your honor ok thank you very much counsel a lot of ground to cover tonight if i go big quickly but on the big data it is not true that that is at all relevant to the sub markets the big data markets are limited to sales to dealers and by definition the big in consumer data does not fall within that market in terms of the  analysis of the sub markets the question market means that control of that sub market is sufficient to raise prices above competitive levels that is what it means to have a sub market and market power and therefore to have foreclosure within that market it's sufficient and if that foreclosure unable to carfax to raise its prices above competitive levels and so not addressing those arguments this is not just a small argument that wasn't addressed by the trial court this is an independent basis for understood to think that it had been given a stipulation by the parties that was going to control this summary judgment litigation and that the court was going to hold you to it and we wanted to be held to it we were supposed to prevail that's a couple of things on the sub markets the trial court actually did not say that the the trial court recognized the sub markets it just when it came to the later analysis of foreclosure share in foreclosure of competition it didn't address the submarkets but actually the court said that we recognize that those were those were market allegation allegations that should be taken is true it did not rule against the plaintiffs on that issue in the trial court and then why you didn't address those later on it's more difficult for me to say i order to relieve us of that person's burden and we didn't get the discovery we had very limited discovery because this was all supposed to be made more efficient and now on appeal suddenly carfax says we stipulated that we have a monopoly power and we stipulated that to the markets as you define them and now they're complaining that we didn't develop a full record on that issue we did develop a sufficient record on that issue to establish that the trial court was wrong that in vegas reports are not in fact in the same market as v h s reports they cost half or less as much carfax internal records show that it only thought of experian as quote unquote the other guy there were only two competitors the h r's were different everybody knew this so in order for us to lose that summary judgment what had to happen is what we did happen which was not only to the stipulation was plaintiffs prevail on the relevant market in market power and not only did the court not honor that due to an untimely market on the argument on apply for the first time but it didn't even give the plaintiffs the opportunity to show there that we produced the evidence but it didn't give us a chance to argue about the evidence establishing that our allegations were right and instead ironically one might even say perversely ruled against plaintiffs without even looking at the evidence on the very issues that were supposed to be resolved by stipulation and order in plaintiff's favor and so if you look at the actual record and we include some of that in the appellate briefing it's really clear that in vegas reports nobody in the market thinks and indeed of reports are part of the beach on market nobody thinks you have to control those carfax crows about the fact that spends tens of millions of dollars converting new vegas data which is cheap and readily readily available and not that useful into v h r's and then it's only competitor also spends tens of millions of dollars to for that conversion and that's experion and the only way we lose it summary judgment is that not only does the court not abide by the stipulation in order in our favor it doesn't even allow us to use the evidence we were able to gather on very limited discovery but simply rules against us directly in an argument that had so little credibility carfax didn't make it in its opening brief and thank you very much