and to dump product in the united states with the intent of destroying competition if the yields will prices to competitors that's the issue and if what if you lower prices to consumers  right if for monopolization yes so how strange that you would require for section one i mean you just enron the whole limit that they're placing on section two claims for lots of good economic reasons and so judge those cases all to synthesise on this issue of a blow costa let me explain the district court here found that there was an addict but it my point is isn't everyone going to bring every predatory pricing claim under section one no we have some good unilateral and that's allowed under section two i get it right under section one you have to have group but you can also have group claims under section two if it's if it's if it's a monopoly claim then so in order to have a monopoly claim rights on monopoly the issue of can they control price and that's really what recruitment is and so the case is in if we have a recruitment requirement in a setting where one person can do it and it's a lot easier to control one person than it is to control the group you have the greater risks are in the section one setting if we're going to get rid of the recruitment requirement if you have a if you have you don't get rid of it there isn't one case that is applied recoupment to a one horizontal conspiracy where it's sale below cost not one ok other than just have you and we have our case in superior production partnership judge given says it applies to both section one and section superior production is a case that involves a conspiracy to monopolize and in again if you're looking at monopoly and you're looking at whether somebody is is going to monopolize a market in that case it involve replacement courts and in the kitchen was there was a section two case of monopolization and there's a section one count of conspiracy to monopolize if you're trying to figure out monopoly you have to look at either allport or you have to look at it ability to in the likelihood of recoupment to impact if not fully determined the plausibility of the predatory pricing conspiracy it's the same point made by the us supreme court case in matsushita the supreme court just making the point that in the produce six circuit decision from a year ago they said the same analytics apply to section one section to do that's all i'm saying right but it's not a predatory pricing case you're on a predatory pricing cases are  questions asked and that's the difference whether it's a low price or a high price the u s supreme court said america hope ok low price conspiracies are per se unlawful no question i thought the supreme court was highly skeptical of low price predatory pricing schemes so that the differences and if you look at mr layton's letter that he wrote the court last are from just referring to us we supreme court cases there's a lot of them that are very skeptical of low price schemes and there's no prices prices than some than some other store and that's that's the that's the part of pick supreme court cases current right cargill is a case that involves two meat packers right and one of the and they object to  this merger that's taking place and they go in and they have standing to object in the first instance of the merger but at the end of the day the supreme court says what you're complaining about is low prices but they're not below cost prices ok and there's no standing to to bring a claim and you don't have any trust injury if the price is are above cost and that's that that's the same the or would that if we define the term predatory pricing as pricing below cost in order to drive out competitors this is a predatory pricing case we don't plea this is so typically you have a predatory yes or no question it's a it's a horizontal  dissent said well in effect they did but they disclaimed it but what's going on here why are you reluctant to say that it's a predatory pricing case all you have to do is say yes this is a predatory pricing case and nicks and yours is distinguish it's a predatory so i want to get it straight here so we don't have the problem that we had in nixon where we didn't know whether they were well we knew but there was a question in the dissent as to whether the parties were claiming predatory pricing i'm not talking about i'm opposition i'm talking about a predatory pricing claim you can undermine or standing but it's a it's a newly formed and it will not fully educated understanding but my basic simple understanding is a predatory predatory pricing means you price below cost to drive someone out of business which you could do in order to monopolize later but he could also do because you hate the guts of these competitor see you know somebody you know stole your wife and so you're go predatory pricing is the right label i actually think i would label it as a horizontal price fixing bloke i know what i'm trying to get at these cases the next day these cases that seem to go against you but they say but this is not a predatory pricing case let me you would distinguish turn is below cost right so there was an emission in nick's sand that your honor relied upon that they were not claiming below cost sales and chief judge whole side there's evidence in the rocker that perhaps they could plead below cost sales here martin ok here we have a fine mean by the district court judge in his december october thirty first two thousand and fourteen decision was intended to drive outcompeted we do allege and we will prove that i isn't that right i define a predatory pricing scheme as one that sells below cost in order to drive out competitors and you say this is a scheme we're claiming that downside why didn't you bring a second son typically what you would do if if you're going to have a monopolization came claiming you could have market shares high enough fifty sixty percent and the question is can you hear in the rooftop market they collectively head in three years they went from a zero percent market share to eighty percent ok but it's combined and so rather than litigating whether you have it can have a combined monopoly right which is a which is the open issue that u s supreme court cases that have allowed it to present is not enough but it's the three combined so typically you'd say monopolises is one and so the question is is can you put three together we believe that we have a section two case my friend mr lane would be arguing you can have a combined monopoly and there are there are cases on that as well the complaint we looked at the evidence we looked at the dockets we decided not to go with a section two case in this and slumber right in the only go with section one but you could have you could have alleged that even so why would have done that we could have done the group monopoly we would have been you could have done it in their section one you could have added and they planned to rand we whatever it was that was taken out of the cylindrical plane we didn't we never had recoupment in the slender complained the judge the judge said we don't need recruitment and just a couple more questions so do you have a section one case that says what you want which is recruitments not an alum and so i mean we've because we've got you know i've got to see easterbrook opinion from wallace which makes it preach pretty clear on this whatever section one or section two you need recoupment in a predatory pricing setting so we have a case that and i really want you to give me something that when i read it i'll say yes he's right because don't if you do if you tell me someone we're not going to say that i'm not going to be happy so i want one where i read it and it's dealing exactly with section one and they say now you don't need recoupment what is that case so so and what it's also that's a district court decision of the ninth we have the decision of the counting from judge rogers which is a decision that states specifically are judge rogers yes it says was so the only predatory pricing cases that the mill cases that have been i was on the case that's not really a predatory pricing case the only cases that i've been cited by either side to deal with the with the horizontal price fixing conspiracy are in the cylinder case matsushita frick and i have one other question just trying to and this is really for both of you in thinking about the concept of and trust injury this in recoupment would you really say it's really the same thing and of the words you know do they really come to the same point i guess is my my issue or question for you because you could say they do and say we have to worry about it though in this kind of scheme i mean that's how you could do it or you could answer by saying no there analytically different and you should never think of them as the same concept section one case you might look at recoupment because it goes to the possibility the conspiracy we think we can get there and show that this conspiracy is very very plausible based on the evidence in the discovery that we've we've already taken but but the he  factor for any section one horizontal case in generally is just are the defendants selling below cost because what what we're trying to do in america is decide what's fair competition  if the defendants here are selling below cause you have anti dumping international agreements i mean that's the way to that's not the any trust laws that we have agreements and it doesn't provide any so in this instance you've got a dozen companies they're out of business there competition and the law protects competitors and allows competitors to absolutely bring claims if they face a low cost sales i thought they trust laws protect competition not compound petition includes competitors if not i can't come in here judge sutton and say look they're fixing prices and they're low prices which is what my habits are says and i'm very unhappy with low prices and i've got a price fixing case ok you my poor me out on that all right so let me be very clear of the justice department can bring that case in fact it's criminal all right so the fix prices even low prices they can go to jail that's a criminal but for me as a competitor what i have to do is say it's a price fixing scheme but it's below cost if it's below cost and to drive out competitors in this case we'd absolutely plead that it was rogers ok if it's below cost i don't have to i don't have to do anything else that person and i got if that was the case there'd be some cases which were where that was going on well i think you would see that that was made i think in eamon then that somebody recovered on it and when that happened would you just saying it's it's just kind of unusual for that to happen because of what goes on in china that's what they're doing i mean we do see we do think the existence of the now market economy is it is a huge factor here not so non market anymore it's a it's a may get some heavy subsidies from the government because that's what you're saying well it's mean that we have value claim that they're paying for all of this is that it's not on the reasons it goes to the possibility of the conspiracy right and that it's socialist there so it's not all but that the government is just the the possibility the conspiracy is driven in part by the stock exchange right in that a non market economy the heart of their so what they say in their own to go down very quickly if you say yes they're sold part of their stock is traded on the new york stock exchange some of these companies profit is a part of what their analysis has put it's not the entire part the biggest driver for them their executive compensation everything is revenue revenue revenue has nothing to do with profitability so the fiction of that this is all about profit is not the case we plead that they are the alter ego of the chinese the any trust laws prohibit a kind soul from pricing below cost and using all of their money just to give out products to american citizens and they never plan to recoup they're going to keep doing this till the billion dollars is gone why they love their citizenry if i don't think the any trust laws do anything that individual and tell that individual starts to hurt consumers by charging monopoly prices which isn't it's not an individual it's a it's a conspiracy three brothers if that love america have a billion dollars right and they want to sell everything below cost first then tell the money runs out they can do that in this country it's a free country they're hurting no one except the competitors that's importunate but they're helping consumers that's the key goal  three companies of g m ford and whoever all got together and said we're all going to fix prices i doubt it was three brothers will call them priests to make it easier to get the point i'm making you can do this for good reasons i'm not saying that was happening fixed price conspiracy ok per se unlawful under the i trust laws us supreme court ok so the notion that just because it's low prices it's lawful is not is not the law low price conspiracies are absolutely against law we'll keep looking for your case we'll look at your cases and see where they say recruitment is not relevant but i haven't done it and below cost your honor that that's that's the issue if it's below cost even if it's low price it's it's did address this question in the columns and get case which was the case about the aftermarket print head cartridges where kodak had one hundred percent market share in printhead in the issue was the time alleged time between the printhead and  and under those circumstances where there's one hundred percent market share in the aftermarket with high switching costs that are demonstrated their recruitment is shown so that it's not controversial for that perspective but i'm out opinion it says that nick said implicitly define predatory pricing as quote pricing below cost with the goal of recouping the defendant's losses by charging monopolistic prices later that is completely consistent with words you specifically the elements of a section one claim include recoupment and the panel says that the court says the plaintiff must grapple with recoupment in order to prove its actual one case it cites both rationality or recoupment are merely considerations that inform the plausibility of inferring an agreement or are formally independent requirements beyond a section one agreement and i trust injury is a technicality we may not address here either way that in a plaintive most grapple with the us in order to win a summary judgment motion i put those last words in myself i don't see how you can say that's a holding here's that it's a formal requirement it's brought into section one under superior production doesn't do that disappear production court was required to decide whether these allegedly section two elements one below cost pricing two recoupment were brought into or corporate into section one it had to decide that because it had to decide whether the plaintiff had to do sufficient evidence of pricing it had to bring both those elements in there's no reason to distinguish between the two i don't understand how you can say that's a holding in light of what i just grow i think it's necessary for doubt it's holding nature oh well on that point i i think that judge sutton's comment is right which is that what i understand the court to have decided not to decide is whether it is required for purposes of demonstrating the plausibility of an agreement or whether it is required for purposes of establishing an interest injury of a competitor but if it's the former let's assume because because this opinion as that one of the other is the case but doesn't say which one does do that right so let's assume that it's the one that goes that's not in your favor and that these are considerations that inform the plausibility of inferring an agreement so these are things that might if you showed them make an agreement plausible for purposes of summary judgment all right this is a summary judgment case and the answer that's given by your opponents is we don't need to infer nick rayment were alleging facts of agreement so we don't need this these two things to infernal grima because we're alleging in agreement and so therefore this case doesn't get you anywhere it's nice i mean it doesn't go against you but it doesn't here it doesn't demonstrate it but it could i could i maybe i'm hoping i'm going to advance the conversation a little i think the answer to that is not the six circuit decision it's  additional elements of a section to claim below cost pricing and recoupment and plaintiffs here of agreed below cost pricing is a proper element just not recoupment so they're saying in for a one in for both but i think that requires response to what i think is judge rogers lingering concern why wouldn't you say below cost pricing with the aim of driving out competitors is enough i think that's the key point why wouldn't you say a price fixing conspiracy would below cost pricing whose design is to drive out the competition suffices in other words you know it's true recruitment still lingers as a section two requirement but why not just say for section one it's enough to have a low cost pricing plus the goal of driving up the competition which plaintiffs think i know incorporates part of matzoh sheet and not all of it but judge rogers point would be why isn't that enough why isn't that advance the goals of section one here's why because as mr shita brooklet make clear low cost conspiracies are number one implausible in number two as your as your own or mention even more implausible in a group setting and three low prices are pro competitive therefore the supreme court couch supreme court counsels him at sushi and burke rupe we have to be really really careful make hassle that we have to be careful what i want to know is the strongest case that hold the flip side of judge sutton's question what case supports you i must say i was a little put off when you said that in your brief that meant solution just compelled the conclusion in this case that recruitment was required and when i read i said well that's great now i don't have to think about this anymore we've got a supreme court case on point counselors told me that and i looked up and then when i got to the end i thought wow this supports the other side i mean i really did it seems to support them doesn't seem to support you but you say well but it's been interpreted to support two in the six circuit case and that he brought you up in that book you know we still have these hard bound books in our libraries and open that book and also don't seem to support is below cost pricing intended to drive out competition in that where is the case that says you have to have recoupment in order to do that rather than some other mean or nice reason for driving out competition i don't know of too many nice business people but there are some that are really mean spirited and they want and they want to go out and destroy people that they've been competing with or that they'd like to get rid legal defense tenth circuit case where the court says it is only rational if the defendants can recover their later life their earlier to in order to advance best the politically plausible that that's what happened if you allege certain facts but they believed facts involving combination you can say well it's not rational and therefore just the fact that prices are low and business went out doesn't mean that there was a combination but if you allege that joe called up to him on a certain day and said let's drive out of jack's motors let's just price the heck out of him under price the heck out of him he'll go away and we won't have to worry about jack anymore and that's not rational you would say but if you allege that you have facts which show that he doesn't have to be rational anymore doesn't i respectfully disagree what case is in contrary to that i believe that which imposes a possibility because it was possible and it was a section one case yes it was a predatory pricing case it was actually a zero cost pricing case in what i said it was and it was a multi it was a book on pricing a multi state legal studies too another way of getting at this you know i asked you from the other side is there any trust lawyer do you think of recruitment in any trust injury is no sad or do you think of them as different things because i think our cases including superior production all say whether section one or section two you have to show any trust injury yes so yes that makes that makes that question relevant but i'm not sure they are the same so i think i understand the question i think they're very distinct ok first of all i think the peer production actually does this with no five in this discussion of a net predation the concept of an indirect predation has come up i think in theme throughout much of the argument and what is the what is the argument bets and that's because of the independent and interest injury issue and i think that this is a you would call any trust injuries getting at that yes and i think that the opinion the best illustrates this is the is the one that just came out the second circu because there it's a low price conspiracy it's banks are both buyers and sellers so they're buying much i'm sorry to put you off but i'm just trying to advance things so that makes some sense to me that they are distinct and it's admirable as an argument because i think it kind of hurt you right because here you wouldn't call this and that and that predation case you would say i mean it seems to me to prove that recruitment is really a key issue but let me let me say that or what i mean i was  admiring that you were telling me she had it was hurting you but you're looking at me like i'm misunderstanding what you're saying if there are no head out predators then this with all due respect to my clients we have one that's in bankruptcy one has a going concern auditor there's it is uncontested and facts that are traditionally noticeable by this court that this i see i see so and so you look at it now fact in order to a stand rule fifty six and there must be a preponderance of the evidence as decided by the jury trial and other then the standard of yes it will this is the language i'm looking at that just seem to go for the other side says on remaining on the court of appeals is free to consider whether there is other evidence that is sufficiently on ambiguous to permit a trier of fact to find the petitioners conspired to price predatory doesn't say and recoup for two decades despite the absence of any apparent motive to do so i so you can go back and find evidence with no motive to recoup just a motive to price predatory for two decades and we don't think you're going to find it is what's implicit there but if it's there then we're not saying you can't do it that what am i reading that wrong i i believe that under twelve has to be plausible there has to and and lower costs you would believe exactly gree that at least contemplates that the facts could be shown which would get past summary judgment that there was a conspiracy to price predatory for two decades despite the absence of any apparent motive no i was there i don't agree with i think i i believe is no no no i believe that henri mand they could show that there were other facts the demo that that demonstrated that recruitment actually was plausible that there were other facts that went to recoupment the therefore went to the which i respectfully disagree with even if you're there you look at their mentor complaint and or their complaint as a whole they allege that we were that the defendants were trying to maximize employment necessary but insufficient they allege that they are chinese companies as judge sudden pointed out they're listed on for they were list on the york stock exchange so what else is there the allegation that competitors agreed to price low as opposed to price when when you're a high price conspiracy case you say you know the motive is obvious is plausible the folks would get together a smoky room and charge consumers high prices it is not obvious to consumers would that defendants competitors would do that in a low price conspiracy and that is why more is required what do you think is the easier path to a firm and from your perspective the recruitment of them element or lack of an interest injury i honestly don't believe the p straightest line i think is the panel saying we said in spare production that is an element of the claim it is an element of the crime i think that there is there are a lot of authorities the second circuit statement just last week that competitors in a low price price fixing conspiracy don't have a natural standing without so i think that is the easiest i think that is a the very straight line is an interest injury and following the mall to say legal status case out of the tenth circuit i think i think rationality and possibility in a low price conspiracy case is an awfully straight line as well your honor thank you if i could just respond to some of those points the first let me start where he ended the case from the second circuit last week the point decision that actually reversed a decision dismiss talking about a below cost price fixing conspiracy and that's all the difference in the world the matsushita decision when it's what do you do with this idea that some people have good reasons to give stuff away so that's that  there's more words than two paragraphs of easter books opinion than in the entire thing it's a it's a plaintiff that had never written a line of code who wanted to compete against lion ics which was a is a system where everybody agrees  going to force their copyright we can all agree people can give away books we can agree authors can agree not to enforce their copyrights that's what he finds in effect the just judge easterbrook state that this is a group and to me it hurts to slice in a predatory pricing scheme it hurts that it's a group because it's so hard to get the group to agree once they drive driven everybody out what the pricing is going to be at that point that's that's a serious impediment what the what the jury is supposed to look at right in the what the factual issue is in this case went out on a motion to dismiss and we actually have more evidence a lot of it under seal intimate mecca talk about an open court but we've cited some of it in the many complaint that you have  we have a redirected version and you look at what was happening back at the time that the parties and into the conspiracy that's that's the issue the question if you've got a conspiracy to rob a bank and two guys get shot as they're driving away it doesn't mean that they didn't have a conspiracy that's what happened here we have hard evidence of a conspiracy between the defendants to fix prices with the with the goal of destroying american competition and we can prove that and and and all we're asking i mean we're talking about a court that we never saw though when the case goes to the jury is you know gets the summary judgment the case goes to a jury the jury instruction saying nothing about the likelihood of recouping their investment the investment being  the low cost pricing with interest and then charging monopoly prices later that just that possibility or likelihood is just not for the jury to consider am i right in cases where courts of allowed work have done recoupment they what they do is they look this case in this case case what is the answer to the question what does the jury instruction look like as to the likelihood with this below cost pricing that these defendants are going to recoup their law the investment is that to a jury a case where there's zero market barriers i mean the three of us could start a company tomorrow with ten bucks and enter that you would still say that goes to the jury is long as they charge below cost pricing and they intended to eliminate the competition if they even though there is zero interest to market barriers even the three of us could enter with ten dollars well i mean let's say you could still win i don't know if what would happen in a case where one enters in  us not part of a section one case ok right so the fact weakness of judge judge the only thing lack of possibility of judge sutton's example is that thirty dollars could provide enough to drive everybody out of business but if everybody gave him thirty billion dollars you could wise up well cities across a possibility i think that market the something could be impossible because there's no chance in this particular market not yours in this particular market that you could predatory pricing case is whether it's plausible to recoup your gains in other words possible to profit plausibility so if i wanted to prove that the conspiracy was plausible i could do it with direct evidence of of  i have you have to have possibility of recouping the investment that's all i'm asking on average no matter the circumstance no because of the plausible or the conspiracy that's that's what the issue is that's the difference between i guess it goes it goes the possibility the production's us think i got it thank you i think this is a head scratcher but i think we've heard about all we can here today and appreciate the advocacy it was an interesting argument i don't think we have any additional cases so you can go ahead and and adjourn the cour