agency despite that fact and despite the fact that this court has generally cautioned against granting summary judgments and complex down to trust cases the district court below did just that only a few days before the trial was scheduled to begin and it did so based on two grounds that do not relate to the merits but are nonetheless very in fact intensive and one of also karen ferguson act exemption and the other involves a court to preparedness component of the and a trust standing in both instances i submit that the court misapplied the applicable legal principles to the summary judgment evidence the m f a does not exempt the conduct being challenge here and the evidence shows that sanger was prepared to enter the market at or near insurance and in fact had done just that let me ask you looking at your complaint which i just got this morning so obviously i didn't read the whole thing i noticed that the relevant market in the market the market providing insurance products the veterinarian think looting large animal and equine veterinarian the product for the fewer professional liability insurance and business insurance  correct be the expert dr house i think refined that somewhat in the summary judgment evidence in his report he said that the market is really professional liability insurance so all the veterinarians that's really the market here now there  evidence that they then use that market power they have a ninety percent market share for the pill are you say ninety percent now let's let's talk about that how many veterinarians in the united states are members of the a v m a sixty five think the evidence was that was that sixty five thousand vets are pretty close to the number of vets in this country there are there were a number of apps now who are teachers and who do not practic retire and they weren't vine p o i germs obviously but a significant percentage of their members were behind and i think the evidence showed from their own documents from the documents they were exchanging with reserve and from their own the definition of the business to business of insurance while simultaneously expanding the definition of the the the boycott exception here though the court did just the opposite why isn't this like the ninth circuit's feinstein decision or the fact that her acts as a broker for all these people participate in the a v in my program that that then spreads the risk for people with high risk practices vs a wrist practices why doesn't fall within that case well because  feinstein the plaintiff my case was a doctor who basically said look i don't like the fact that i have to be a member of lakme of the l a county medical association in order to buy those shorts and the argument was well look we need to sell group insurance  on a group of patients in order to spread the policy risks that's not what we have going on here the the the the problem here is not who gets insurance or the type of insurance to make yet the issue really is who gets the right to as i understand your complaint with his quite different from their brief or as i understand your brief your brief is you're not objecting to her organizing and running the p l o investment trust for or you just want to do your own and you want to have exclusives with insurers for terror or whoever else whatever other organizations is that correct yes you're also basically you want to divide up the market is that correct now we simply repeat what the right to write veterinarian sure is through other state associations but but as far as how it goes you know the bigger the market it seems to me the more significant is the argument that this is a matter of risk spreading from a hub standpoint in other words if only fifty percent of the bat i mean this is a bizarre case as far as i can having a program and want to finding about the sale of the group of group policies to the album members unlike feinstein what we're complaining about is very simple that they use their market dominance to extract agreements from their album insurance through the big four as i call them to not do business with other brokers like us who are wanting to do two to sell veterinarian assurance to other programs other state association program and they have a lot of responses to the size of the pool in which the risk will be said fred well that's that's the argument they try to make but i think that mischaracterize what our complaints are because again we're not complaining about their ability to write insurance for average members we're talking about  who can broker that's all we're talking about who has the right to broker the insurance to veterinarians and here we were excluded as a result of their market dominance and conduct from brokering insurance to other well exclusive dealing arrangements are you know there was a time when they were highly suspect under any trust law but i don't think they are any more i would call this judge shows that really concerted refusal to deal which i think but the evidence shows i think the e mail exchange record forty one twenty two i believe the c n a came back and said look we're not going to write standalone monna wine e p l in point practice liability insurance and we're not going extracted that agreement from them as condition to do it thanks for having me on your boycott and your boycott claim hubs behind it has the actor who's basically orchestrating the boycott yes yes hubby sixth round you need don't you concerted action for a boycott i think the concerted action is between her and it's and it's happening sure to them they say look we're not going to do business with you we're not going to let you write insurance to the apple members unless you agree to not do business with any other broker and they extract that agreement from from from hartford i don't understand is what benefit the insurers get out of that in other words they're already competing with each other because there are four of them little cell t yeah but it benefited them by getting access to the album program if they didn't agree let me ask you this fundamental concept why are you suing her of that and not pl by honing in on the defendant who was ultimately culpable sitting at the top extracting the never hears that well that i mean again i never heard of a broker being at the top of an insurance of the insurance pyramid this it's just upside be on the m f a and whether it's whether it involves a business of insurance i make sure that it does not involve the transferring or spreading the policyholder risk not dealing with the policyholders we're dealing with simply who has the right to broker the insurance that's it  the conduct is not an integral part of the policy relationship between the new shirt and the insured which i have in this single group which is how that's making sure they channel what as you said zurich does them out the malpractise i think harper does some other types of policies not challenging we're not complaining about the album appeal light program we're not saying we have a right to spare we're not claiming that there's some problem with but isn't it obvious that there's a difference between a fool of sixty five thousand vets on one hand and the two hundred some all of one time that's a relatively small pool compared to what you're talking about nationwide well we simply want to the right to to broker insurance that relatively smaller pool of three hundred  and then expand to different organizations in other states including the american association of equine practitioners but i think the point is there that your question i think really goes to the merits and role drugs says in footnote five that were not  the album appeal i t program itself sort of like an feinstein and saying that we have the right to be the broker there that's not our complaint we're simply saying that they have no right to have the right to extract agreements from the four major insurers  judgments to the contrary that they did but but their risk pool is their risk pool but we're talking simply about the right to sell insurance through broke through insurers have access to their insurers to write insurance for others why don't you move on to the vet it wasn't at all clear to me that you had gotten the resources together or made contact or even set up some kind of proposals with happen to be there in the veteran veterinary business but the point i really want to emphasize is a piece of evidence the court completely overlooked and that's hub's own recognition of the fact that we were prepared to enter the market and in fact have entered the market well i'm not sure whether that's relevant in other words it is often the case that competitor will miss perceive the other party i mean just like in foreign relations or anything you misperceive the other party strength or weakness so it's addressed that factor because it wasn't an issue but i think it's very important hub is very experienced and they know the difference between a dreamer and a real threat and they perceive they recognized us as a threat in texas i would refer the court to the april two thousand and twelve e mail where they resisted raiding for use in texas because of concern that that would drive that vette and potentially others did lower the premium but but unfortunately for the other thirty six who were the subject of a similar rate increase we don't have the same evidence that they oppose that rate freeze so yes i think it does demonstrate that the presence of another  were we were selling saying it was selling for a time business insurance to individual equine that's a clinics and with a with an indorsement we're getting them peel off professional liability insurance but that was a far less adequate product than being able to sell standalone monolog why is it less adequate i can't answer that your honor has i'm not of insurance expert but that was the scene to be the testimony of joe baer that the preference was to be able to sell on a standalone model again the major way for vets the channel of distribution they were routed to here was apple appeal like to no problem with that it's it's just that they should have the right to be able to choose and have the right to choose another channel distribution and that's what we were trying to offer but for the fact that we didn't get access to their insurer she and i trust injury issue is really also relate at the end to damages and even if you can get over that preparedness hurdle what kind of damages can you get  because there's a obviously some good degree of speculative ness when the business was really never up and running i guess we'd like to get a chance to to surmount that hurdle but we didn't but dr house put on a damages model that basically interest in injury you stated that you stated that your refined market definition is the market for professional liability insurance for all but all votes or just states i want to say it was california pennsylvania oregon hawaii and alaska forty five states then yes although the all bets in forty five states as your potential market insurance issue and then on to standing under hartford fire insurance a boycott is a concerted refusal to deal on a collateral transaction to coerce terms of a primary transaction but justice scalia pointed out in that opinion that if the collateral transaction relates to the primary transaction it's not a boycott and the challenge to activities in this case directly relate to the primary transactions between holiday and each insurance carrier in between each insurance carrier and its respective insurance that's because what sanger asked for was an access to the program policies rights and underwriting guidelines they say they totally disclaimed that in their briefs their expert they say in their reply brief that you are miss characterizing and frankly when i read these briefs i thought you were just talking right past their fundamental arguments the record shows that joe barrett e mailed these insurance carriers and asked to access the same coverages that have had and why can i not do the same in relation to travelers insurance for example and i think that's a record on appeal forty two eleven i believe he specifically as regarding access to these policies but with regard to the professional liability insurance their expert testified repeatedly that it is the zurich professional liability insurance product to which a broker must have access in order to compete with i mean it's very clearly the policies and the issue in the program well but where but maybe where maybe you're arguing a different levels of generality because prime a doctor i have the higher the hartford for instance a long time provider of medical insurance but that doesn't mean that every doctor's medical professional liability insurance policy is exactly the same does it no it does not and in fact in this case the record reflects that the program policies which offer higher limits and enhanced coverage are different then the non program policies that the insurers offer in the non program policy the professional liability insurance is written as an endorsement of the business package policy and in fact zurich offered to joe carriers also have peel endorsements so alison that their lower but they're lower when he higher deductibles or something like that and lower coverage here it is the program policy off first higher limit it offers coverage for things that are not necessarily covered under the other other policy that would be animal bailey and things like that one of the main criteria of the policy the program policy is that there is no hammer clause under a professional liability policy ordinarily the professional can you know approve or disapprove a settlement a hammer cause would put some liability exposure on that vet if the insurance carrier could have settled for a lesser price but the vet said no one of the draws for the whole policy is that it does not contain that hamm falls so those are the types of differences that exist in those policies where is that in the record that is in the well dr house and discussed it somewhat in his deposition and in his report  claiming that the hammer clause is somehow critical to the professional liability insurance for  the hammer cause is also mentioned in parts of the record where the is negotiating with insurance carriers for the parameters of the coverage but it the access to the policies in this case even even if even if sanger wasn't asking for access to the particular program policies these challenge stick to these would still relate to the primary transaction and for some of the reasons that judge acosta has mentioned you know for one thing for example in the case of zurich how brought zero to the policy form that already existed for the a v m a program they brought loss control data they brought underwriting suggestions they helped to formulate that program in exchange agreed contractually not to use that data not to use those forms and not to use the rates that are actually tied to the a v m a group for other brokers and outside sales if sanger had access to that professional liability insurance product essentially zurich and sanger were taking confidential data that surface contractually agreed not to use to compete inserts case with its own the distinctions nor did they frankly but they just say they're a broker they want to be able to go to these companies and negotiate a group braked why can't they do that there's nothing preventing them from doing and in fact that's what have been the a v m a did when they had to go find a new insurer they took their leverage for the fact that they say they allege that i told these others don't deal with saying well the record shows that each of these four insurance carriers agreed to write veterinarian insurance for sanger all of them agreed to write small animal fats and according to the record the a v m a data shows the bets seventy seven seventy eight percent well so and so you don't you don't disagree that right now after or at the avalon play it handles ninety percent of all veterinarian professional liability coverage well in fact we do disagree with that to answer your question from earlier today and i'm not sure that it's in the record but there are over one hundred thousand vets in the united states of those there are about two thirds that are v m a members in the a v m a publishes this data publicly every couple of years out of those there are some that by professional liability insurance and others that go elsewhere for coverage because we have to remember that there are other companies out there and job are acknowledged in his deposition as did dr hawass that the piano is available as an endorsement to the that would implicate this this business of insurance and i guess that's where i'm not really seeing you articulate a rationale for how the allegations as they characterize them would implicate this res well and let me point out that you know the record reflects a hub spends hundreds of thousands of dollars a year on advertising and marketing not just of that program but also of the four  insurance carrier and particularly in the case of zurich which you know is it is strictly speaking a purchasing group each event that it pulls out of that program changes the makeup of the group seven and consequently changes the risk profile of the group which is directly tied to the demographics so you know competing with that program by using the marketing that supplied by your insure have the same risk even if there's stealing some people i guess out of the national group well actually it's not because it was contractually agreed not to use the program data so in order to have a new group policy according to they're going to have to go through the whole analysis for the new group and where is that data going to come from if that group it because these these insurance are coming from the a v m a risk pool so they're going to have to have enough background in history to the idea that the the train and the challenge activities here don't relate to the primary transactions is just inaccurate because it clearly does relate to the spreading of that sanger can't compete because it can't access these programs policies and so the choice of broker dictates whether you get the non program policy or whether you get the program policy i really mean they keep saying that they are not trying to put your policy now what you seem to be saying is that it that in effect they can't compete because they can't put your policies but that doesn't prevent them this case is ten days away from trial but that's another issue entirely but i mean there's no pleading or acknowledgement or concession from from there is side of part from their expert saying that you had to in effect have the zurich put policy right well joe baer asked for those policies will ease mine i asked for right well i would tell you if i was making an offer if those appear to be the the best things going but then i'd make my own all well but there are those are the only two choices was the program policies or the non program policies because joe baritones fired his deposition they did not come with a proposal for a new policy and if in fact they had they would have had to go through the risk analysis go through the ratings go through the approval process with each state  you know what sanger did was make some phone calls and have some launches they didn't have a group lined up they were in preliminary discussions with tell you that and instead of getting a group together and going to an insurance company and saying you know here is our group you know here's our last control data you will you write a policy for us they went to the insurance carriers and said hey would you write some equine which is the highest risk sub specialty in the business without any further support they did not attempt to create a new policy for their own group they were simply trying to tap into the existing policies and their choices were program or not program a couple questions about your alternative grounds for a firm and switches both market share of the market share issue or geographic market issue and then just liability  i think you just spent about a page or maybe two pages on each of those issues which are typically very complicated and what kind of basis do we have with no district court record no rulings on the admissibility of expert testimony or not to read in the first instance on those fairly technical areas to the extent the information is included in summary judgment record or the expert motions that would be the support so we would have to decide in the first instance whether the expert testimony will survive the dog or challenge i believe that would be the first  is a trial judge you can do know back to the business of insurance you know the selection of a broker and the authorizing of an agent to solicit a group policy or an individual policy falls into the business of a broker was leaving and took confidential information they were putting employees or things of that nature that are outside the scope of what we're talking about here but about church to refuse really recently in the third circuit  insurers on another to divide the market between the insurance carriers that's not what we have here we've simply got an a and agency agreement for her to actually you is getting the liability the professional liability policies other people are getting the workers comp policies and the does seem like it's allocating the market among insurers maybe that's probably permissible but from a care for that information act purposes that's where the third circuit recently said that broker does implicate risk spreading and does implicate the business of insurance and that's because it is directly a sex tourist spreading through that broker  accepting or rejecting coverage is tendered by brokers is best referred to it you know attempts by insurers to discriminate among brokers based on the type of policy tendered that's the business of makes that they couldn't you know that they're not able to access a particular type of policy that falls within the parameters of both owings and the in reinsurance brokerage and well what they say is doing it what they say is we cannot conclude that the alleged agreement has the train effect of transferring or spreading the ok nor does this alleged conduct fall into any of the categories of the business of insurance we set forth and owens the alleged agreement does not involve trading schedules or rating classification differences nor does it involve authorizing agents to solicit particular types of policies the client category owens category quote accepting or rejecting the coverage is tendered by brokers may seem the first blush to describe the alleged behavior but in the context of owens quote accepting or rejecting coverage is tendered by brokers close quote is best understood as referring to attempt by insurers to discriminate among brokers based on the type of policy tender and what they're saying is that they were tendering a type of policy which was a group they were hoping a group policy and your main argument is that the facts don't support that your made you argument is not that they're not alleging that which would pull it out of my intimate care and ferguson you're just saying the facts don't support that well but we're also saying that even if they had tendered a gr whether or not an insurance carrier excepts or rejects that coverage is part of the business of insurance as described by owens and in reinsurance brokerage and you trust litigation you know one of the things about that third circuit case and in reinsurance brokerage is that the risk had already transferred in that case those were policies that had already been written to insurance and when they came up for renewal the insurance carriers were refusing to  reading the bid so that in conjunction with the brokers the market was allocated among insurers that in no way approximates our facts in this case  much of what we've heard consists of disputed fact issues and i think judge cost is right that the mccarran ferguson act among other things including the preparedness component are fact intensive issues that where the green what is what is your disputed fact asked to mccarran ferguson well one issue i think is is that the argument they're making is that none of the four ensures said no but they're willing to write the insurance and that's highly disputed the the evidence shows and we've cited the given  record citations on page twelve that the the big for the album and p o i t insureds indeed were saying no how how does that if assuming that fact issue exists how does that matter in terms of whether this is the business of insurance i think that goes to the to the argument of whether there's a transferring or spreading a policyholder risk because what we're saying is that it has nothing to do with who gets insurance the vets are going to get their insurance what it has to do with is  is that the right of a broker to sell insurance and that's that does not involve the end it's not integral to the policy relationship between insurer insured it's not doesn't even relate to the underlying policy business with you unless you refuse to not do business with any other brokers want to sell through any other program i read will drug in the other supreme court cases the initial issue of whether you would fall within the exemption it doesn't even get to talk about the boycott exception terms of being a fact issue i know that all one case of them in action the dissent was saying look you cannot conclude as a matter of law here that the conduct being challenged fits within the m f a business of insurance suggesting in may that you have to look at the evidence in the light most favorable to the not moving in terms of the boycott i think this case fits precisely within the i'm the eastern states retail lumber case which hartford described as a classic commercial boycott because there you have retail lumber retailers saying to the wholesalers look we're not going to do business with you if you continue to be selling to our end users and that's exactly what we have here hub told their insurers that they wouldn't be allowed to write insurance for the admin program unless they agree to not write insurance for other brokers want to do competing programs on the standing o preparedness issue judge jones cited jayco there's a couple other cases from our circuit finding a lack of preparedness what's your best case finding preparedness that you think fits here i think the two best cases are the hecht case of the d c circuit and the new with case of ask you though i'm looking at footnote twenty three of the district court opinion and it says that bear explained in his declaration the fireman's fund was not interested unless we had an existing book a business presume on the first point anyway fireman's fund is not interested unless we had an existing book a business wouldn't that go to preparedness because it stands to reason that insurer is not going to look at a group discount or a standalone policy at all unless you had said you know it's not worth their trouble to conceive of one unless you've got a book a business lined up and you didn't  about the business well several answers that judge jones number one is fireman's fund was just one particular ensure they were largely writing out in california i don't think they represented the views of the other insurers and certainly not of the of the big four there's no similar indication that they needed to have a book that they just work forward to write professional liability well because the the evidence i think was hotly disputed in showed that anybody else who was willing or able to write veterinarian surance there were many of them what they're willing to write was either not available or just not adequate it was for who were who were the primary ones you know when we know that because up select right better insurance this really is backing into their argument that you wanted exactly the same deal the planet had now we just wanted access i disagree completely that we needed access to their policy forms of their underwriting we simply wanted