good morning your honor my name's robert plano i represent the planet palance and this this case is the easy pass for the ski industry case there are eight defendants grouped into four groups each group has got a parent subsidiary and of those four groups two of the defendant groups are management software and the other two are gate access technology this complaint was four hundred paragraphs it had numerous examples many incidents and plenty of exhibits it was drafted with a conscious appreciation of t blee and there were many facts given it was fact heavy  so that is the overall background for the case that went up on a motion to dismiss lower court did not use the appropriate standard it should have deferred to plaintiff it  court did was the exact opposite it accepted as true the moving parties theory and that was wrong so not only was playing of my given deference plaintiff had an uphill battle so it was some kind of exponential is it correct that the plaintiffs products were not compatible with the defendant software the compatibility issue was a central theme adopted by the is that correct that is not correct everything has a threshold in compatibility but that is the task of integrating so at the threshold where the plaintiffs products compatible with the defendant software and what was alleged in the complaint alleges incompatibly the extent that every application software has to be integrated in configured with the management software yes it was not compatible of the software would have had to been or at his cost for example with the nordic track demonstration igor amount so counselor in your complaint you attached any now where it was stated when there's a discussion back and forth about this interface that would cost hundreds of thousands of dollars for the interface to be done so that's not something the district court took from outside the record this is an email that you would touch to your complaint that is it to suggest that it would have cost nothing what it would have been minimal of there would have been a cost but the thing is it would have been a reasonable cost and that's the whole focus if it's unreal it was to accommodate another company's product when it's unreasonable when the new entrant to the market has a better product with better features and which is less costly and play the complaint got to that detail and in fact in the implementation of it plan of never got past the marketing of it to actually get into the back and forth of cost there were paragraphs in the complaint where for example one management software company said it would cost three hundred thousand war and mother  four resorts said it wouldn't be cheap but in terms of the actual number of what it would cost it never got to the point where they would give of course the refusal to pay this these amounts return let me just say that the refusal was something of a pretext as so out as to which is saying i don't know i don't agree that it was a lot of money but in terms of the federal law would have been a sherman act violation because it was a restraint of trade these were the kind of barriers put up for a restraint of trade i don't want to pay three hundred thousand dollars for your product you know i say no thank you that's a risk sherman act is  give a separate issue i think you have that we have said that exclusive dealings exclusive deal or agreements are presumptively legal my side effects the competition the market as a whole are you really arguing here simply that your client is affected how it affects the market if anybody with a better gauge product would be shut out on the same rationale and as to the twenty percent those would be smaller resorts that you're presenting to the quarter percent of the market then you've got twenty percent of the resorts which are not within this structure of the management software coupled with the gate access company don't want your product or i don't have to if that were the end of the story ok but the other half of the story is the intimidation by these management software companies to the resort and the intimidation the coercion and the influencing them and those kind of strong arm tactics telling em it would cost three hundred thousand having somebody at core mountain say do you get along with serious where somebody else saying i don't want to ruffle the feathers of serious where so the whole point is the intimidation part of it thank you we'll hear from the other side with prejudice of plaintiff th amended complaint the district court gave playing of five opportunities to state a cognizable sherman a claim under either sections one or two to federal jurors below magistrate judge brown and district judge saber both decided plans failed the state ignores of mclean and could not allege a factual basis to sustain and any trust claim on appeal plaintiff had provided no basis to overturn the sound decision as the lower court correctly found the serious were defendants have no obligation under the antitrust laws to spend their own time money and forces developing an interface for plaintiffs a product or put their own reputation on the line by supporting plaintiffs by his own admission prototype and preproduction product that has never performed in actual operation during a ski season and that the serious where customers have indicated have never indicated that they would want not a single ski operator has decided to buy plaintiffs products let alone even pursued a practice run with it and this is the innuendo plaintiffs in their four hundred pages of complaint or however many pages exit nowhere in this entire record is there any factual basis whatsoever to support any notion of to mr cherished the plaintiff which says to him we'll work with you here is the procedure in the press and they lay out this is what you have to do the client the client or the ski resorts they have to make the request a work order that is generated scope of work is defined a budget is assessed and then as the as is indicated somebody has to agree to pay for this work for the interface either the resort or the vendor in this case the planes plaintiffs never never made this request to serious work nowhere in this record is there an allegation that the plaintiffs made a request to sirius where that they convinced any ski resort to make this request was so serious where to start this process there was no reef usual to digital period by sirius where in this record and i want to emphasize roger that plaintiff's original complaint was filed in january of two thousand and seventeen and almost a year later his th amended complaint was filed at the end of october of that year nowhere during that almost one year period of time is there any allegation that plaintiff convinced or even approached any ski resort operators to try to convince them to make the request a serious where to get any indication of interest from them as to plaintiff products or any allegation whatsoever of any refusal by anybody to not cooperate with him were to support his his product i think this is quite quite telling now your honour's know in a section one violation you have to have an agreement because unilateral conduct cannot form the basis of a section one violation and when you examine plaintiff's brief to this court he tries to overcome the debt deficiency that there is no agreement among the defendants by making four references one he says oh my complaint contains a general of vermins of agreements and there are agreements between the defendants concerning advertising and marketing and there must be technology agreements between sirius ware and the access defendants will of course general of vermin sub agreements are plainly insufficient and advertising technology agreements are not unlawful restraint of trade when it has in grasping for the allegations of agreement to restrain trade has demonstrated he has no evidence no facts to support any alleged agreement do business with plaintiff at the time as candidly is admitted in the reply brief here on appeal and this is at page sixteen there wasn't even a product at the time and this is in response to argument that the statue of limitations four years bars the claims against active because nothing further is alleged as to active which at the time was called resort to acknowledge your partner's or our t p after two thousand and nine in plaintiff's brief plaintiff then says this is the reply brief appeal a claim brought in two thousand and nine to thirteen was not viable because plaintiffs did not even have a completed product to sell a claim brought them would have been speculative according the two thousand accordingly the two thousand and nine facts are merely historical background not operative facts and those are the only facts alleged as against active as to vista the one of the client that i represent the only allegations as against mr are that it bought active in two thousand and thirteen how those two collective facts could then ever state any sort of antitrust claim against either entity who claims necessarily fail fail for special limitations or for years they fail for the antitrust insufficiency that is to say there's no indication of any sort of refusal to do business even because there wasn't even a product in place at least for active unless there are further questions thank you thank you good morning daniel brown representing access north america and access just want to start with access a g there is no disputing the record that access e g an austrian company was not served with process  there's no dispute that they were served so dismissal is appropriate under rule twelve there's also no personal jurisdiction there's no legitimate argument against personal jurisdiction the record contains affidavits affirming the lack of minimum contacts  in response all that appellant can say is that he thinks there likely might be personal jurisdiction that of course is not as to the allegations against axis a g i invite the court to please look at page use our software the allegations that purchase purchasers of our products refused to replace our products says nothing about the access defendants doing anything at all they  morning your honour's douglas broder for the defendant ski day to ink and ski data a g in our braves and in the arguments presented by the other appellee is this morning it's been shown that the complaint was properly dismissed for failure to plausibl y plead any anti competitive conduct among several other independently sufficient reasons from firms i just want to make one point the relate specifically to the ski data peleus and their response to the planet's reply brief in our brief we showed  the complaint lacks the necessary specificity as to our clients who are gate makers here we show that the only facts as opposed to conclusions and speculations regarding alleged any competitive activity by our clients are related to two thousand and nine a time well outside statutory limitations period in reply the plan of state that even those facts were just background and thus evidently not to meant that meant to form the basis for any claim so that leaves nothing in the way of specific facts relating to any competitive conduct by our clients other than that they participate in a market that the plaintiffs have been able to break into and that they have per se vertical per se legal vertical relationship with other participants in the market iran into a brick wall that's the point of it he did contact the resort and that defense that nothing ever was communicated the serious where is wrong he couldn't get past that hurdle due to the but he sent a fed ex to the austrian defendant and that has been briefed by their attorney that it's the fact of people leaving what's your position my position is that if things were upon hyper technically there is merit to that argument but if if that subject were focused upon hyper technically it would be defective as a matter of substantively whether that attended was put on notice which is the undercurrent of all the service rules they were put on notice so in a overview they were on notice in a hyper technical rule oriented perspective it's defective according to your approach you could call them up on the telephone dealing something on the technical universe i do disagree with that finally or secondly as to the agreements there were agreements the point of the trust the law is to forbid combinations and concerted action and arrangements that's been the mainstream of the law in twamley they do say you've got to get an agreement in there and we did say there were agreements definitely the two entities would agree and in technology they had to agree to implement the software and in marketing they promote each other given all that their agreements now add in all the other plus factors and intimidation and that states that claim thank you thank you will reserve decision