of there are several reasons stated in the brief as to why we see the reversal of the lower court's decision but the principle reason deals with the application of the plausibilit a complaint should not be dismissed soley because the judge below does not believe the version of the events alleged by the plaintiffs we contend that this is exactly what the district where did particularly highlight of the conspiracy in the hopes that the supreme court's and this circus president is clear it is the right to conduct business free of interference the right to service one's customers and generally the right to compete there are the kinds of rights that can be explored the district or dismissed the civil recall count because as we content it misapprehended the nature of the right at issue only but it's not the right at issue here it's not the rights of participate in the provider in the interest that we contentless extort from my clients it is the right to my client's specialty pharmacy business that was exported so texas and in california the specialty pharmacy business is the kind of transferable property that can be exported now there's no doubt there extortion requires an element not defendants or insurance companies true and they can not obtain the right to participate in the providing that but this is not the right issue with that we believe was tainted with content so you're saying that it's not relevant i think in in the briefing if i recall correctly there were some additional reasons given why your client was not allowed to join this particular network and you're saying that that isn't really relevant to this to the case that you're making the violations that you're alleging right  concern with my client's right to participate in the provided that that's right is relevant but it's not dealing right now jurgen unquestionably hear from the defendants that the reason why they weren't that we brief extensively in our submission is not preempted by every sub and it's also based on the federal annually provide a law that essentially states that any pharmacy that is willing to you is in a unique position where it's been intrusted with of federal and state health care dollars to administer of pharmacy benefits at the same time it is a direct competitor to pharmacies such as my client that operates specialty pharmacies throughout the country and it competes for the same exact business as my clients now at the same time up to my rx has the right and not just opt in but all the parent companies of the optim have the right and indeed they do various what it's and they conduct certain types of reviews and certain types of credentialing administer certain types of credential that this is the nature of the of the extortion they essentially placed my clients in a situation where they felt that if they did not if they did proceed with the under reasonable requirements and the unreasonable processes that often put in place that all of their pharmacies in new york and elsewhere would be terminated from optimal  affiliation this is the sole reason that one of the pharmacies was terminated from then or not of minutes into the network of such a dallas and that pharmacy there were no issues whatsoever and we do conten that there were absolutely no issues that given the opportunity to present proper evidence would be standing in the center of houston situation center histon had no issues it had the right to be part of the provider network based on state and federal any provided anyone provided was it had a substantial amount of business at least twenty million dollars worth of business in specialty pharmacy and if they were allowed to proceed to the credential import to satisfy the requirements that under federal and state any will in providing them must be satisfied by all pharmacies in that they're willing to be admitted they would have been admitted and they would have we contend that the relevant product market is the market for specialty pharmacy services for those patients whose pharmacy benefits or administered by optimal rocks now we have to understand the mechanics of how it works a patient has insurance let's say from united health care or from another company they're locked into a particular p b m such as optimal routes they have no choice to go to anybody else defined which is the market for specialty pharmacy services a patient has a choice to either go to an independent form a c such as my clients or they have a choice to go to a mail order pharmacy such as optimal rocks now if more pharmacies such as my client are eliminated from this network from this market for specialty forms and services patients have no choice but to go to the optimal rx specialty pharmacy to pharmacies that are impossible on most of the time it's impossible for them to comply with there are no discernable criteria that upton provides to the pharmacies to satisfy these what is they stall they do not give answers they essentially stonewall pharmacies and it you're saying they don't admit them but this is this a deliberate and they are they don't admit well this is one of this is the specific issue in this case they did not admit my clients and to that but once the pharmacies are in the work specialist for birds for instance special special pharmacies they can eliminate those pharmacies from the network as well and this is how they this is the conflict of interest situation that optimus put itself in by eliminating these pharmacies that essentially drives business to its own pharmacies and why because patients just do not have any information about anybody else any other pharmacy they have the only information that they're constantly bombarded with is oh we have a great form a c affiliated with your health insurance plan optima rocks own pharmacies come to us you'll get great terms you'll get wonderful service unfortunately other pharmacies sessions my client are not able to directly markets of these patients their services and ins up being an up to mills that and that's the reason why would let me just ask you what is your preferred relief in this case is the point that you have been excluded from the net where your client's been excluded from the network and that you would like to be able to participate like the other pharmacies or is it for a monetary award and then you go your separate ways and we would we would be happy with an opportunity to fairly parts of speed in the enrollment process and be given due consideration and hopefully we will obviously we will be able to submit all the required documentation and we are absolutely certain that given an opportunity to participate will be some space and what do you believe is the motivation  you file a civil rico suit do you believe that there is a motivation to either pressure the defendants are pressuring the point of so as to put them out of business or to acquire them unfairly out and marry on reasonable are suffering from these type of practices of p b s who are essential in a situation of a conflict of interest and they're essential pressuring independent pharmacies out of business and yes our clients suffered a direct injury due to loss profit they would have made a substantial profit servicing the existing specialty pharmacy business that they which stand up ended up losing because of the situation that they were placed in by the believed they had it but it's not rico and it's not antitrust and this court and the supreme court have held on both of those claims that you shouldn't make every business dispute into a rico claim or into an antitrust claim because of the significant discovery and other burden and inconvenience that placed on defendants to make these very serious allegations remember seizure is not just you know raising a business dispute they are accusing defendants of a very serious set of federal crimes and yet the complaint simply does not live up to what they have claimed in this case when it comes to rico the key flaw is they have not alleged a transferable property right that optum or that any of the defendants obtained from them because and what we sought argument today is a little bit of a mystery action because they would at st say that the property right that is being alleged is the right to be part of the network which is created under the any willing provider of laws but the problem with that is that even if you assume that that's a property right it's not a property right that the defendant obtained it and that's what the supreme court said in six car and schneider is it has to be the kind of right that can be bought sold or transferred and you can buy or sell or transfer the right to be in the optim network in fact everyone has the right to be in the optimum that if you meet optum standard terms and conditions you too can be an optimum provider that's the whole point of the any willing provider laws preempt it or not and so robbia which is the specialty pharmacy subsidiary that plaintiffs refer to didn't obtain from plaintiffs their right to be in the network and in fact would have no reason to obtain that right even if you could because it's already in the network it's already providing services so a play i think perhaps noticing that problem with plaintiffs pivoted to is they say well what was taken from us was the business but that's not a property right they have no property rights to the customers they don't own the customers they don't buy and sell the customers they most have an incoherent hope that their customers will keep coming back to them but again under schechner and schneier what you have to show is that you get a property right in the sense that it can be bought sold or transferred and patients don't fall under any of those categories they're not chattel that businesses sell to one another so for that reason the rico claim fails because there's been no a team noble property right that was taken by optima and given to anyone at most there's and has to be obtained that's the that is the what differentiates hobbs act extortion from other crimes like coercion and i don't think you've heard from plain it's plain either what was taken and transferred or what was taken and transferred allegedly here the business constitutes a property right that they own and then that is even before you get to the other problem with the rico claim which is that there is no rico enterprise because it's clear under this court everybody in their totality but of course the plan sponsors don't really know or care about one another and the fountains of pharmacies remember there are actually thousands of independent pharmacies in the network right now they're all competing with one another so this  enterprise to the they're alleging is just the bunch and in differentiated contractual actions of people in the p p m market and filling those claims so that separately fatal to the rico claim moving over to the antitrust side i think the question from the higginbotham struck pretty well is one that it's unclear from plaintiffs briefs and their pleadings what their defined product market is or even what the geography of that market is both of which are essential to a well planned antitrust claim because that's how you measure the anti competitive the facts and that's how you measure attempted monopolization the only market percentage that set out in the complaint is twenty two percent of the p b m market which is in other words patients who use p p m twenty two percent of them are optimum but actually a lot of the competition in the bumping off that plaintiffs are complaining about is occurring at the specialty pharmacy level and we have no allegations in the complaint about what the specialty pharmacy market looks like what percentage of the market for instance that bing a whole is and that's essential because under this court's cases twenty percent or less of a market share retail pharmacy as the folks who count pills from big bottles to small bottles let's say a specialty pharmacy is a pharmacy that handles medications that either require special preparation or special storage so for instance hepatitis c drugs which are one of the drugs that's mentioned the complaint and is relatively profitable these days that require certain special handling and preparation and storage that you know your local walgreens may not necessarily be routinely and because it requires that there's higher reimbursement as a result so that's what a specialty pharmacy is you know note that the siege of pharmacies actually applied to be in the retail network they took applied to be part of that like your walgreens or c v s the people from the big bottles the small bottles but they do have certain elements that they do engage in some specialty pharmacy services so that's what a specialty pharmacy is and we have no nothing in these pleadings that say about how brevity that is in the markets and also how brad via a mail order pharmacy or it's just a class of it's just a class of drugs that require special handling preparation or storage so because it requires more skill and i think more investment there seems to be over the farm yes yes and that's that's a separate network and you know has different reimbursement rates because obviously there's less skill and perhaps higher volume involved but what we don't know for these antitrust claims is anything about the local markets we don't know how bradley is competing in say the l a market or the houston market or in the of generic sense but one thing what's a section one claim and what tom lee says is you can't just say the defendants conspired because that's very easy to say and rather hard to prove but what you can do is if you can get to discovery you can impose the cost and the difficulty in the inconvenience of litigation on defendants and perhaps pressure them into settling so what the dish report correctly recognize was that once you distill out the things that were essentially that kind of legal claim which is the defendant conspired with one another all we have is that optimum catamaran at some point met to start talking about the synergies in the market that are two businesses may work together and they had those discussions and eventually they decided to merge and then they  and that's it but of course there's no allegation that's been preserved that the merger itself was anti competitive there is no allegation and there is no allegation of facts of anything that was carried out as a result of this anti competitive scheme plaintiff's counsel today talks a lot about how optimist just in the market trying to pump out these independent pharmacies but the only facts lead in the complaint is center there is not a single other pharmacy that is mentioned in the complaint other than cedric that is apparently the victim of the scheme actually quite to the contrary the allegation in the complaint is that there are thousands of pharmacies in the optim network which cuts against the allegation that there are some anti competitive scheme to do away with independent pharmacies in the in the network because it competes with all of those pharmacies so for all of those reasons none of the none of the claims are well pleaded and the district court was correct at this in this them and i think for similar reasons that the state  claims fail as well many of the claims are essentially derivative of the federal claims so for instance the texas tortious interference claim i think plaintiffs even admits rises and falls with the rico and i trust claim there's a separate rico an antitrust no fair procedure claim fails for the simple reason that plaintiffs have never contested the district courts finding that they have never shown what was unfair about the procedure that was given to seizure l a and so again for all of those reasons of the claims are probably dismiss but i think what the courtroom decided at the end as a lot of this discussion comes down to and i think maybe the question at the end got to his this is a garden variety business dispute they think they met the credential requirements we think they did it and rather unfortunately but i will say that the audits in this case occurred after the merger the allegation of the of the complaint as i understand it is that the scheme was struck by the fund where these denials and then the denials that took place in terms of the claim misconduct and the timing of the acquisition right so that as i understand their complaint the claims are you know a time one this interest conspiracy was engaged the merger closed which as your honor points out they start running into some serious copper well problems and then a time three there was the sea drug denials spes so the claim i think is that the illegal conspiracy happened before when they are distinct and happening the only facts are is something that they talked they thought it was a good business decision to combine and they don't mind and there is nothing in the out and there is nothing in the complaint that raises the level of plausibility that what happened here w anything other than the normal tearing out of the credentialing process because remember as i mentioned the only pharmacies mention a complaint or seizure pharmacies it's not as if they're pointing some other pharmacies elsewhere that say aha they're doing the same thing to them too report recommendation where we think about leave two in and so in the initial opposition to the motion to dismiss other than sort of the formulaic statement of the standards for a motion to dismiss no mention of leave to him and there was a hearing where the magistrate judge encouraged people to be ready to argue these motions on an abbreviated basis cedar said boy we're not great argue your honor but can we submit something in writing after district church magistrate judge said sure go ahead they never submitted that writing so again another never requests for leave to amend and never leave two and then never came up to the reports and recommendations and of course that's too late but i think there's a more fundamental problem which is that even if you amended their complaint to conform to what said in that pellet briefs and what was said from the podium today in other words even if you thought that their complaint said everything that they now think is the surest and most forceful sense of their claims it still doesn't add up to a plausible claim when you get on the rico side in particular they say it's about the judge didn't believe them no it simply is as a matter of law what they have alleged their property rights are or aren't transferable properties on the sherman act side they say there's a certain infelicity to how the market was pleaded but even if you you know even if you sort of constructively amend their complaint to say in that product all we have is the twenty two percent national number by the way which is why the district court focused on the national numbers and that's it and so we don't have any facts to back up that new product definition so again even if you granted them everything that from this litigation is a an opportunity to be part of the network and b and more specifically more importantly to be compensated for the loss of business that we've suffered my clients had a identifiable piece of business this word and the supreme court of time and time again felt intangible property rights such as the right to one's business the right to compete the rights to service one's customers is the kind of transferable property right that can be exported we have an identifiable transferable piece of property which has the right to service specialty pharmacy patients now they're saying that even if you assume that the membership have it gives you a ticket to something that you are entitled to i don't see any allegation here in that effort to they're designated so called zones of these are the areas where specialty of form seen that haitians sign threw out about about these these examinations that they were wrong and so on and so forth  listen to your argument i don't think i have anything to do with what you're trying to would happen is the only examination of my client that occurred at the outset before my clients were denied entry in the network where exist without being compensated and without being reimbursed by an insurance company so my clients of being a business are not in the in the position to service patients and not getting reimbursed for them so absolutely the reason for being in a is is to be reimbursed by insurance companies that is the only reason why we see country and at work no other pharmacy would possibly think of servicing anyone without a not especially in certain specialties pharmacy business without getting