for a moment just doing knowledge the passing last week of your colleague judge winter was long and distinguished service was an inspiration to so many of us and i know mr chesler shares that sentiment i just happen to be speaking  this appeal addresses whether the district court was correct in dismissing at the pleading stage the claims of a class of merchants who allege they paid higher merchant fees as a consequence of accepting the very payment cards that were directly targeted by amex is so called anti steering rules which were designed to restrain price competition from those competing card networks we respectfully submit that the district court erred in doing so as a court where section four of the clay next fifteen u s c section fifteen provides redress for plaintiffs who are injured in their business or property by section four has broad remedial and deterrent objectives one could be for example is in the supreme court familiar mccreadie decision a psychologist patient who is not reimbursed pursuant to an insurance plan purchased by your employer or test and some may not like what would be good citing that sort of more globally judge bianco i i don't disagree with you i think it happens to be the elephant in the room and as a consequence it it features in the briefing but i agree with you   certainly it was foreseeable to amex as a natural merely a natural extension of the intended consequences and as to the amex accepting merchants i think that's that's that's clear for example judge no relationship with american express they're not banned by the anti steering rules they don't compete with american express how is their direct injury well st of all the point of the any steering rules of course was to stifle price competition by those three networks that are accepted that are accepted by our planes there really kit as it is a consequence causation i mean how how does this fit within  it's it's it's clearly it's clearly foreseeable judge trend and and beyond beyond that beyond that the the the prices the merchant fees that are charged to all merchants are going are going to elevate under the umbrella and american express or can be no doubt american express knows that it's it's in it's in the very market that we're going to sell or creates a cartel or does something in a competitive to raise prices for its own good that that is just going to raise prices for the good in the marketplace and that seems like it's a direct consequence is that your argument is pretty straightforward that that that is that is our our debt is your argument judgment  i think it's even worse here if you're in a cartel situation there is at least an incentive for the french settlers to non carlists to price  some marginal level below the cartel and you have that question about this whole debate over umbrella standing which is you know it seems i think vision for test is directed at avoiding but they're not buying from the cartel and so they're probably not facing prices as high as the try sell price then it's going to be debates over whether the cartel was big enough to affect the price of the big space or whether we give the cartel with graphically concentrated and didn't affect them or  maybe there's some discretion on the part of the sellers from whom they're purchasing and it's going to be hard to disentangle all of those questions so isn't that the reason why even though there is room to receive the umbrella purchasers  generally say no we're going to stop at the st step of the chain and just not entertain suits from the umbrella purchasers from people who don't buy from the personal well i in this particular circumstance we are on the same level we are we are dealing with merchants they just happen to be merchants who are who are paying higher emergencies to the other people you have to be interesting because actually in this market their own rules are for sellers to a lot of figuring out how much the cartel price affected non portable price then you don't have that but so i guess my question is this so if i'm concerned about all the consequences of recognizing relit standing defy if we were to find for you in this case would it lead to the consequences that we're just recognizing the rules ending in general or is there an argument that your clients have to that particular in a moment but in general i think the guiding principle needs to be a section for the clayton act which is to say is there a cognize of all any trust injury and is there proximate cause as a consequence  we don't think that there should be triple damages for injury all the way down the line and you see this kind of principle throughout the law rights to work there's the economic loss rule that is high david you're right away i'm liable consequence of the harm it's that and you know when we're talking to anyone who determines something like positions in force or will we decide who is best positioned to recover for it and it's going to be crushing liability and hard to administer if there's liability all the way down the line so even if it's foreseeable and even if there's injury don't we still need to be concerned about how we're going to administer a kind of rule that allows for  liability for police to sue all the way down the line we do your honor and i'm not focused on you know my brick questions here and i recognize the point being involved in several financial benchmark cases within the nd circuit i think the points that we make here in our briefing number one with respect to with respect to the gal going factors to the court were key factors from american associated general contractors to district court air and number two number two for our particular set of points who do not accept american express they are not bound by american express merchant agreement and as a consequence unlike those they're actually they need not  be the most direct or the most efficient in forster's but in this situation your honor i would argue that they would because in fact they are the ones who can sue by way of class action in federal court that you have two minutes or no your honor i'm sorry i'm saying you're efficient enforcers regardless i'm saying though in this particular circumstance i believe they are the most efficient enforcers because they are the ones who can seek to market wide relief on behalf of the good morning your honor is adam sessler from the first i want i think our position is clear but i just want to state these these merchants have absolutely no connection to or relation ship with american express it's not just that they're not subject to our contract and have no they're not bound by the nondiscrimination provisions there is no relationship they're not competitors they're not customers they do no business with us they're absolutely remote from american express and there are multiple links between the n d p that are accused here and these merchants and in fact  attenuated relationship between them and already viz was explicitly addressed by the supreme court in the ohio against american express case the supreme court said i'm quoting these and master cards merchant fees have continued to increase even at merchant locations where american express is not accepted and thus american express and times during provisions do not a plot so the supreme court made exactly the same point that there is is increasing were to be is for regions with whom it deals and that is a large enough part of the market wouldn't you just expect merchant bees to increase throughout the market for credit card acceptance not not at all your honor the the the evidence in the u s case for example demonstrated was no reason to think otherwise here that it's the competition among the cards that are wrecked excepted by the march that drives the competition and that takes place at a merchant that except this except all four parts is in fact the same price competition that takes place at a merchant that accepts two or three of those four parts and not another is no basis for that it's in the fact that the master card and discover to charge certain words in fees so there's merchants who take american express because there's a piece of different rules there and then charge a different set of is so merchants that don't take american spreads because there aren't the dispute that that had be the case in certain markets i do question whether that is an inexorable rule that is true in every market i've been involved in other cases where that's not been true so it's sort of a don't they allege that here mr chester is not part of their allegations this is a motion to dismiss alleging that that's what's happening here you're alleging that that's what's happening here and our position is that that the sufficiently attenuated that it fails the direct this standard of under a g c it fails the fact that there are there are better pla enforce the case indeed the march except our current let me let me ask you about that mr chester because their argument you heard a moment ago is that because of the arbitration provision that that's not efficient that you would sensually have to go merchant by merchant that's not efficient what your response to it i've got two responses one is the department of justice explicitly sued for the benefit of the merchants who accept our cards their entire case was premised on the notion which was then rejected by this court and by the supreme court that those merchants were paying higher feeds than they would otherwise pay and that that was an antitrust violation the fact that we that they lost that case can't mean that we can now be sued by word about plans that we'd be in a wors position we'd be in a in a better position for these plaintiffs if the if the outcome to come out is there any reason why the federal government and or state governments can bring another suit at this point couldn't they when they were new a suit or some other state government  merchants were explicitly the margins on whose behalf the department justice and all the attorneys general sued in the other case but the fact that those merchants have sued on their own behalf and it goes to arbitration doesn't make them an efficient enforcer that would undermine the holding of the intelli in color space and supreme court that says that arbitration provisions are perfectly lawful appropriate ways to enforce rights that exact argument was made and rejected by the supreme court and justice scalia's opinion in italian colors there's no there's no sense in which arbitration is viewed as an unacceptable or even less acceptable form of enforcement of rights had it been the supreme court would have come out the other way in its value so i think the plaintiffs argument on that ground is is not efficient enforcers and unless this court holds that umbrella standing somehow pre amps the a g c standard which it's never held and in fact this court as i'm sure your honor knows routinely enforces and applies the a g c standards there's no there's no basis i believe on which to find that even if umbrella standing apply here if you reach that issue it would alter the outcome that the district court found which is these point of sale to satisfy the a t c standards and again i wouldn't reach that issue because this liability so what is the principle of what is the ultimate purpose of the e c standard seems like even if we can say that there's injury in proximate cause there still might be too attenuated a connection to the original wrongdoing that would require a cut off you like articulate what principle we're applying when we do that kind of thing well you're i think it's a principle that we often find in the actual size it's a principle for example that's applied all the time and in illinois cases there's no question that because it is a passthrough right it's like you could say that the there's a harm to somebody in there that person is passing the harm to somebody else and so different here where they're alleging that you were a client has raised prices for a good across the market and they buy that basis under the act trust laws and for example in del boy this court made a point which the district court here made as well which is the consequence of finding standing here affectively would make this defendant potentially liable for every transaction involving every merchant be under every card in the country there comes a point where you look at that and you just know intuitively as a court i would submit and as an experience and i trust  think it should say to the court of course you then say is the really justified there may be case would be cases where where they might control the whole market right so in your case aren't they just food water providers of critical and services and so if the four of them are involved in a cartel like he we're in i can do that maybe it's appropriate to say that everybody in the market has a claim against you out of my client has about twenty five percent of the transaction volume in the united states circuit that said that they don't apply i thought that i think the district courts reasoning year was absolutely sound that there is a there is a lot of case law in the th circuit that says that the court right actually follows the principles of the sherman act in the clayton act this was developed the supreme court said in a g c that therefore part test derives directly from the clayton act so the principle that the that the current right action be governed by following the same basic principles that are used want to find  lot of compelling authority that says quite right follows the sherman act so i think the district court was correct in its reasoning there i know i only have a few more seconds i would just we haven't reached the other elements and let your honour's have questions with respect to the rd and th factors i think they're pretty straightforward the amount of speculation that would have to go on here to get from the merchants who accept our cards and what the but for world would look like at those merchants let alone with the but for world would look like merchants who never accepted our card would be  the kind of regression analysis that economists get rich on it's the kind of thing that would be highly speculative and plainly fails the rd factor that you think there's no question but that the district court was correct in finding that these plaintiffs don't satisf how to deal with the birla damages it's been written and i do want you to address this issue of to put the of recovery i don't understand it in the said master card discover settlement it was the scene on tire merchant fees  portion the higher fee was from their own steering rules versus m x s during a mistake possibly figure that out well here are all any trust lawyers like to think that they're amateur economists so i'm i won't i won't answer that i will say that the modeling would certainly be done in terms of a buck or world in the st instance and the buck or world would depend on the presence or absence of the of the anti steering rules here i'd also i'd also there are there are only four persistence in the market that the the appellants that we represent may not be customers but their potential customers have damaged in that same market they participate on the same level accepting merchants i would argue it's not all that and we judge all right thank you both the court will reserve decision