in the briefing for this case there's numerous issues addressed i think for purposes of today's discussion focusing on the issue of whether the appellant established spartan established the fact of damage in this amount certainly the first factor relates somewhat to causation of the the evidence at trial and it's important obviously this being in a trust case the market  you know we had it a market that was very sensitive on price and we believed that part was established the next part of proving the fact of damages was that there was a price war so not only was the market recently sent our to buy your client but admitted by your witnesses and indeed i thought that was curious i can't remember ever seeing a case where your own witness admitted that you began the price war and to enter the market it's true it was a monopoly i think this is something that you would see in most monopolies the price tends to rise and here we had a competitor that came in to try to compete and and the prices dropped so yes to gain market share certainly spartan came in offered lower prices and it was a vicious price war the volume discount preceded the price were right but the volume discount is sort of a a misnomer really when there was one competitor there was no correct i guess we never really understood exactly how it came about others other than that the admission that the price of been charged the entire time that spartan entered the market smart was charged ten percent more there is what direct evidence in this case shows that your obvious or his price discrimination affected your concrete prices that effect our prices well i think the evidence was that it affected the price war and that this this price discrimination came in and they're competing on price and it injured spartan because in effect if the main point of competition is price and a supplier is assisting i think that would have been a no brainer how do we know the volume discount was illegal your honor i believe that the first three elements of this case have been established in that there was good there competing products they had price discrimination from just a single supplier and the market consisted of only two competitors and there was no demonstration that there was substitutable you know product that could come in and so we had to be a unique situation i think in these days of finding this type of market i'm just trying to get to how it's illegal i thought don't you need all prongs for it to be illegal it at a lower lower price to somebody that buys a million pieces as opposed to some of the buys ten right that's not illegal is it no your honor it would not be understood under that depending on the circumstances can't sell at different prices have to sell it to us the same price yes or certainly if they had a cost justification defense which is emitted lee if that was brought up if they could show through specific evidence that there was a reason that you know book sales for instance were cheaper there was one about you know instead of breaking up into smaller packages or percentages then they would have a defense but absent a cost justification defense it's our position that it was an illegal price discrimination and there was no evidence of the cost of the case a defense in the case at the end of the day didn't you just have a failure proof and in reading the transcript it was striking the aegis didn't have any  sort of hard evidence that that showed what jobs you lost as a result of the price differential right well but i kept waiting to see you know customers x y and z come forward and say well we would have liked to have done business with spartan and we would have done business with spartan but we didn't and here's the reason why i mean there there wasn't any of that was there and you know we don't believe that it was necessary or the law requires that you  show customers coming and we had six witnesses at least five of which testified that customers made the decision based on price and that they would lose jobs based right but which which customers and how much money and i mean  got to prove up your case in put a damages number on the board for example you need you need to show how many jobs were lost and what the value of those jobs were didn't it to prove the measure of damages i agree that's an  issue with regard to measure of damages if you showed a we you know we lost one hundred one hundred sales because of price and then we could cut that out maybe our lost profits on that would be our damage but i think it's the only way that you have to show damages i think that you could show or measure damages in any of the ways available to a normal to normal it again and what specifically did you show and i think the damages that we showed a were that the company had engaged in three years of this price war and it added sustained losses and had to close its doors and basically at the end of the day and the p and l showed how much so that at last the losses as i understood it were not through a lot of cost involved in the business the product but the cost discrimination added the extra feature to this this price war it was it was fuel for the fire the price war and help having materials continue their their competition and the price war because they everything we got from that last production and that was the entire basis for our motion demand for that simple conspiracy and interference with but i think it's a good judge restruck poses asking i mean you were chair was your client partly responsible for the delays and if there was a punishment to be had i think the punishment would have been we weren't entitled to any more discovery on the issue we couldn't ask for more e mails on the issue but that we should have been allowed to amend based on the facts discovered during the discovery process i believe that was th answer that i should we take into consideration that you are bringing in a new party we weren't gonna you weren't bring in a new porno we would all go we let's conspiracy with heavy materials we didn't bring any materials and it was a party that may please a court of power fella representing orcus us vi corporation a sporting claims that the price of cement price difference led to a price war which drove it out of business in st thomas and that this cost difference caused every dollar of its losses while it operated there but that's not what the evidence showed the real story was that in the first ace martin started operating in st thomas it compete aggressively by offering lower prices than heavy materials concrete prices and its pricing strategy had nothing to do with the cement costs sporran admitted that the cement cost difference did not prevent spartan from competing successfully on concrete prices with heavy materials from taking a business away and gaining market share or from increasing its sales significantly smartened also didn't set its prices based on the cement costs instead spartan said its prices to undercut heavy materials and it purposely sold  low cost prices in an effort to force having materials to either sell its business or get out of concrete so smart and consistently charged lower prices than heavy materials even if it meant sustaining losses by selling at below cost prices smartens minority owner mr bressie testified that spartans majority owner said he was willing to spend millions to break heavy materials and he was willing to spend millions to finance their loss and so they could consistently offering lower prices and heavy materials and selling at below cost prices worked in that it forced heavy materials to the bargaining table but it cost martin to lose money every year eventually smartened got what it wanting when heavy materials agreed to stop competing and divide up the market with spartan taking st croix and heavy materials taking st thomas mr mostly or explain that he was able to get s croix with good prices and then spartan raised prices immediately and st croix after they signed the agreement one of those price differential begin to start up in the first day of operations it was a tethered to the volume  discount yes your honor it was the evidence was that in any given year heavy materials purchased between five and fifteen times greater volume than spartan so we're not talking about a minor difference in buying this was a huge difference in volume being purchased so spartan wasn't driven from the market it voluntarily agreed to withdraw from the market so it could divide up the business with having materials but seller what's your response to mr crow bones argument that that the illegality of the price discrimination was established in this is essentially the damages case i would i would say that's totally incorrect why because we agreed that there were same products being sold at different prices but we don't agree that it was illegal they have to still prove competitive injury and then and that's just on the section two a side of robinson patman act in addition to prove damages sqlite next section four they have to prove and i trust injury and have reliable measure of damage all right so let's start with the competitive injury why was there no competitive injury here ok well there was a as the court knows there was an absence of any direct evidence of lost sales as a result of the cement cost difference so it spartan was relying upon is what they call a substantial price discrimination over time to get the morton salt inference that there was competitive injury here but we know that the morton saw injury is  exactly what happened here with there was a substantial amount of undisputed evidence that spartan lost sales and profits for other reasons that nothing to do with the with the percent cost difference there was testimony that customers decided to buy from having materials because it provided a better quality product better service greater reliability had a larger fleet of trucks it had specifications it had worked with clients on it that spartan didn't meet and also a number of customers decided to buy from having materials out of loyalty even when sport was offering lower rices so the evidence here rebutted and overcame that that possible inference was discrimination affect the price one hundred percent of the time it always did didn't know your honor i wouldn't agree i think the evidence here clearly showed that the cement cost difference which was a tiny input cost in a manufacturing process this was not distribution or for sale at retail this was a manufacturer one point three percent of the actual cost that's correct one point three percent of the total cost of the evidence was that as as mr p d admitted this cement cost difference i see said did not prevent spartan from successfully competing on prices and he also admitted that spartan had a competitive advantage he said a competitive advantage over heavy materials because of its concrete prices so the evidence was there was no impact or adverse effect from that this tiny cost difference and spartans ability to compete on price so the fact that there was competition over over concrete prices is not the issue here yes there was some competition over concrete prices but there was also competition over a lot of other things as i've just indicated and in order to prove an interest injury and causation the under play next section for the plaintiff had to prove that there were direct sales that were there were there were a direct evidence of lost sales and profits that resulted from the cement cost difference there was no evidence whatsoever of that in this case and so i would submit to that whatever of the amendment you know we've to amend is is liberally granted and you know some things were they've got the email who came out that you know they think is somewhat of a smoking gun and why shouldn't the court have allowed the amendment in light of the liberal standard well i would delay and burden on the core are also grounds for denying leaf to amend so what happened here is when we had the hearing on the motion for leave to amend in february of two thousand and seventeen the court indicate the magistrate indicated that she was going to deny the motion for leave to a man on the one of the ground prejudice and burden but also on the grounds that the pleading itself didn't meet the ashcroft won't be standards under twelve b six so she said that at the hearing within two days sport and then tried to put in an slip in another amended complaint without doing it procedurally proper but knowing that had happened the magistrate in her opinion said that even if spartan was able cure its pleading deficiency she was denying leaf to a man and on the standard grounds of under prejudice to our gross unjustifiable delay by spartan and an undue burden on the court we were we were in february of two thousand seventeen with dispositive motions due in less than two months in april two thousand and seventeen and then trial three months later the core recognized that this motion for leave to amend would have caused that whole discovery it's your honor but it's a combination of that of the burden of that the cost of that and the lay that would be cause just by all of that was there another party involved would have the materials have been brought in at that point it was an intra pleader situation or they wouldn't have been brought in by us and then i don't know what spartan they hadn't tried to do that at that time because we're not adding another party so we've got the same two parties but all the depositions that had taken would have had to be retaken up based on new issues that were not in the responses will we didn't learn about this e mail where they said you know keep it confidential don't tell anyone about the price discount had we known about it we would have amended sooner way by the way how could they be charged with not doing something they were unaware of i guess what the court found is that way back in two thousand and fifteen when this case got started in the status conference was being held spartan indicated that they needed to conduct discovery of having materials and they would have to do that it was required but the court indicated they never did it they never took any discovery of heavy materials never pursued that so they didn't diligently pursue discovery didn't complete discovery in a timely fashion and violated five discovery orders of the court that were being set during that period of time so they had the ability to try to find this evidence that they claim now is significant but as the court said they sat on their hands and didn't do anything to obtain that discovery ok so we get to two thousand and seventeen and they're arguing there should be new claims in the case when we've got dispositive motions coming in trial set three months after that and so it was way too late and was prejudicial because we have to retake all that discovery that would have to be completed and then the cost of then preparing for a whole different set of issues what about futility would you address that the court said that twenty standards the allegations were bare bones and just perfunctory and basically reciting the elements of the claims without any facts and that was exactly true if you look at the draft of of that amended complaint there were no facts to support it was all conclusions so that's what the court found there was a pleading deficiency but then he said even if they because they tried to slip in this new version and within two days and the court found that even if they cure the key holding in this case that there was a complete failure of proof s to enter trust injury and damages there are two fatal flaws in spartans claims the first is that they did not present any direct evidence whatsoever of any specific sales jobs customers or profits which were lost as a result of the cement price difference what is truly remarkable about this case is that spartan did not present any customer testimony and the sales person testimony or any documents to identify a single lost sale customer or job that it claims were was due to the cement price difference the absence of any direct evidence through customer testimony or documentary evidence worked or salesperson testimony shows that there was no proof of actual causation with reasonable certainty as this court found in the process and products case i think is in february of this year that the underskirt next section four to recover damages and to prove in a trust injury there has to be actual cooked proof of actual causation with reasonable certainty here the remarkable thing is there was a total absence of any evidence any direct evidence whatsoever from any source as with a single last customer say or job nothing that the mr p d testified and they relied solely on his testimony that he was assuming and he was speculating that this occurred ok so there was no direct evidence and all they relied upon was mr p d said knitted assumptions regarding this evidence he admitted he didn't know i customers didn't buy from spartan and he admitted he was just assuming now the second fatal flaw is that there was a substantial amount of undisputed evidence that sales and profits were lost for other reasons that had nothing to do with cement cost or concrete prices it was the all these other factors that the parties competed arge offs were higher than one hundred eighty thousand in price differential right that's chrome one of sort of the most glaring on not correct or on almost two times higher bad debt write offs of customers just didn't pay them and then they obviously they admitted they lost money every year because they were selling at below cost prices nobody forced them to do that that was an intentional pricing strategy to sell at below cost prices like i guess one of your points that seem worth considering is that just because they lost money or ran an unprofitable enterprise doesn't mean they weren't competing effectively in the market i guess is that your point that if they increase from nothing up to thirty percent or so of market share that shows somebody that's competing pretty effective were losing money hand over fist while they were doing that it's not a result of the cement price difference that was their intention because it was only one point three percent of total cost correct and again this was a manufacturing enterprise where cement just represented a small purchase part of their cost to begin with but the real key point here is that as this court knows the supreme court in this circuit has said repeatedly that under clay next section four a plaintiff can't recover from losses that are trivial to other causes and what spartan has said here is that all of its losses were caused by the cement price difference and we know that's not true because the evidence was completely to the contrary and showed other reasons why it lost sales and profits but when trying to do here is it's a cover three point eight million dollars of all of its losses over those four years and say it was due to the cement price difference and it as a matter of law and a true pain and decisions of this court a j f easer among others and st can't do that and i guess my time is up so last point i'll make is i think this court is exactly the same thing as what happened in style wagon where the court found there was a lack of documentary evidence of any proof that the prices from an asian result lost sales and there was not one single customer identified in that case that's exactly what happened here so thank you  could you begin where we ended with mr feller interested in this notion that the ability to compete is unrelated to your bottom line in other words we measure your client's ability to compete based upon the fact that it it got a pretty substantial market share pretty quickly and look at that independent of its profit and loss calculation or you arguing that your clients bottom line is definitive about its ability to compete it's a complicated question and and i think you know the issues how much funding did we have coming into the market we came into a monopoly market which is the problem and we need to come in and so of course we're going to suffer some losses it is our theory of the case that had we been able to compete without some sort of market distortion that gave our competitor a better price on products that the price floor would have subsided and we would have been coming to some service balance step whether we had thirty percent of the market or fifty percent of the market there would it been an equilibrium achieved and so it's our position that the price working to need because of this agreed to a secret price discrimination that i'm not sure you answered my question respectfully did do we measure your client's ability to compete based upon your bottom line or based on market share or something else that i don't need to me i think a one level i think mr feller makes a point worth considering that you know when someone shows up new entered the market has zero market share on day one in relatively quickly gets up to thirty percent market share that that looks a lot like someone is competing very effectively in that market i don't believe that an inability to compete is a set a touchstone for  for whether or not you're entitled to an interest damages you could still be competitive for other reasons but if you are suffering some damages the law i think is clear it's the extent of those damages caused by the illegal price discrimination is what you're entitled to and it doesn't matter whether or not you're competitive in the market or not competitive in the market you're just entitle to the damages that are caused by the legal price emanation and that's not a believes the law let me go back to the lack of  fellow or get in that the district court referenced what specific evidence in this record can you point to to identify lost customers other than mr pease conclusions because there is a focus that we didn't have any sales personnel or customers testify i mean this is a small operation we had testimony from businesses no there's no such testimony in the record no the answer is not that it we didn't have a big sales force we had a small group of people and the managers of the company were intimately involved in the sales mr p d testified that he was involved in somewhere in that ordinance and sixty percent of all the sales and then ninety percent of the time in those sales that price was the main issue curt knows who was also involved in sales testified that price was the main issue roger brazee who was also involved in sales and ran the company for a time testified that price is the issue market only the customers or potential customers and we did not we i mean there was thousands of customers and so we did not feel that one or two or ten since you don't have any other evidence there is you know we're throwing the case out so i don't know how that informs this case because we do have evidence in this case we have that the testimony of numerous individuals who you've got prices all that matters in this and this is a commodity and prices all that matters you've got that in spades right yes but beyond that well your honor i think we've got the fact of injury we've shown that this is a price sensitive market we've shown there is price discrimination a fact of in jury is that your client had eggs at the market it wasn't making it was lost a lot of money here but they were overcharge for a product input and they were overcharged one hundred eighty thousand has charge offs there's no testimony there are charges who are somehow higher than another company's charge offs and without that i don't think you can say look at a raw number and say oh these charge offs are you know they were the cause i mean what what is the percentage for a normal