my name's payton healey and i represent plaintiffs l g motor sports in this appeal the first issue that i intend to address is whether two powerful business entities may enter into a combination that precludes competitor of one of those and t s from getting a product necessary to compete i believe that under the rule of reason now i was l d motorsports a competitor of either genome or michelin mich by which l g essentially advertises its valuable products to the consumers and so having been excluded from this particular race pursuit of this agreement that i've reference that channel whereby consumers are told think that conflation is a bit confusing yes it is true that l g motor sports did in fact race in the american series the allegation however is that it was never able to obtain the michelin's due to g m essentially using it market force and the fact that it's the michelin is a primary supplier for the corvette in the industry and on the actual street level corvettes to preclude l g from getting those michelin tires and so yes it was in the race but for all intents and purposes cannot in any way be competitive and we know that because it's in the record that l g would do testing on the race track and essentially the difference that they could get with even just michelin tires if you can  tires additionally as tested against kumo tires which l g was able to use it wasn't even close the dunlops are only closed for a short amount of time you attribute nothing to the engineering skills of riley or  and obviously those skills are important for the pit crew or whatever all of that makes a difference your honor yes but what we do know is that l g undertook to qualify one time using du tires and the reason you can use them months is they're about as fast as michelin's for we allege the first maybe six or seven laps over an extended time however they break down they wear out more quickly and their performance falls off dramatically pursuant to the testing that l g has done in which is less than the complaint your honor so yes all of that matters but what we know is and as we listen to the way a team of you know similar skill financing all of that all things being equal the denial of michelin's is what be completely truthful that that is the loss of these michelin tires is what precludes winning in this field unless you have or even competing in this field reasonably unless some other kind of performance modifications are made  told michelin you should not be providing these tires i'm sorry that g m told michelin don't provide these stars do you know that was that was prior to the bankruptcy honor but after the bankruptcy as we have alleged post bankruptcy we have also alleged there is a separate and new agreement with what we call quote new g m and michelin and the reason we know that your honor is that there was a bit of confusion about whether after the bankruptcy g m was going to be reentering the reason i say it's august of zero nine is because they held a meeting in person and then after that meeting in person you get this letter coming back in august going and saying ok it was great talking with you we're not going to supply you we're complaining about it is the ability to continue to compete in the american the months or years to see six corvette at this time we still have a viable race car not yet moved on to the c seven so been precluded tires they couldn't get the person under contract for the upcoming season all of these advertising revenue talking about the racing season for own fourteen twenty well my point is that it could have continued to race eventually since they couldn't get michelin's for a long period of michelin tires at races of course not your honor so there are other cars available other tires are available yes but i think that's an important distinction to draw because the michelin's were for all intents and purposes at the time we list complaint the only ones that have ever won and the test done showed the michelin's were the only ones that could get you kind of over that hump that the three second homes that they were continually chasing none of the other tires as we listen complain reported and therefore we're basically on a plane or standard that is a great question and i'm glad you asked i don't know you keep saying these are great questions you would have helped if you had filed a reply brief and respond to these points about playing your own several points and all of these other rather it's specifically said failure to file written objections to the post findings and recommendations contained in this report fourteen days after service sub are an aggrieved party from didn't overall review by the district court of the proposed findings and reckon made recommendations and from appellate review of factual findings except that are adopted by the district court except on grounds of plain air so your honor clearly a distinction is drawn by the in his recommendation so we you know i looked at the douglas case and it simply says that yes you do have a waiver situation or forfeiture technically situation provided that the participants are would notice that such any i mean we have loads of cases interpret in douglas and i just wonder is there anything that supports or opposes that position well i mean mean i clearly what i'm saying is i know what you're saying and i'm saying that we have many interpreting douglass in the way that you want i doing it i'm simply reading douglas for what it says and reading the opinion of what the magistrate judge said there's no way that we enter is you didn't really research this to figure it out before you will no do no judge i don't think that's exactly fair well the problem is that i mean douglas is a great opinion of course written by one of my colleagues on the bench here but it is at least ten years old and i can tell you from experience that we have loads of cases interpreting douglass and you may be right i just was grasping groping for authority that you know what i did what i didn't find is one where you had the ma e judge divvying up you know what was revealed by appeal so what the magically that's the point that i couldn't find so what i can do though is look at what the magistrate warned us about and he warned us about waiver you didn't fall in objection to being dismissed under twelve basic to the antitrust claims an issue of law and the district judge could just suppose review that on the plane or a standard review are you saying it's  basis you know we'll have to just check the record but that's what i want i will check the record as we break i'm sure they'll enlighten us on when they are arguing so about the room fifty sixty is out also playing euro standard review where you say over and over and over a failure to provide an adequate witness and we are risk required to respond to most of you didn't provide an affidavit when you came and tried to stop summary judgment on this torture sent to france with a contract no you know we didn't not the hand it is a crew chief for the cadillac team racing in the american women series where he said you know you don't ever really think you're going to get michelin's after beating a g m down in a world series and that's sufficient evidence that's not michelin by their representatives that the reason he's not getting this is because g m doesn't want him to have it and then michelin says provides kind of misleading statements about you  we don't want your data to get interfered with but that makes no sense you're they simply don't have to combine or otherwise review the data in tandem so these priest textual issues are also a problem so he's told it on multiple occasions the procedural question we're thank you pass your time but jam also and it's brief at fourteen no says your brief before us is simply the brief you presented opposing summary judgment to the district court and that's why you don't respond to various procedural aspects is that correct is it and you know exactly just cut and pasted your brief to the district court you know your brief here i don't think that's i don't think that's accurate i i think that there are portions were we use some of the same argumentation but is it a cut and paste is it no you are no i don't think that characterization is there ok you have some time for rebuttal thank you all right see general motors acceptance corporation the finance arm and leave that it was already a separate entity before the bankruptcy well the only reason i ask is that i was now i'm i'm pretty confident that that's the case for my husband and i own a five thousand dollars bond maybe it's ten thousand in g m ac and when i saw this i thought about that bond and it wasn't on my recusal listen i'm pretty sure that at least after if anyone can enlighten me otherwise i'd ask you all to bless this if it's a conflict of interests to with respect to g m there's really two issues raised on appeal one has to do with the m r trust claims the other has to do with the grant of summary judgment or tortious interference with perspective contract  will confirm there was no objection to the dismissal of the and i trust claims the only objection that was made had to do with the dismissal of the disparagement claim which is an issue on a the plaintiffs wanted a right to replete that claim with respect to the and i trust point even if you were reviewing it did novo i would just point out there is no relevant economic market ever defined by the plate he's talking about a racing series a competition athletic competition not an economic competition and clearly he never points to any harm to any economic actors based on anything that he's alleging alleging in the complaint on that basis even if we're going to novo the complaint clearly was properly dismissed by the district court was struck by how we kept getting rulings amended complaint rulings amended complaints first complaint they threw out the antitrust climbs then he files another an amended complaint is the antitrust claim even presented in the amended complaint or was there some agreement well you don't have to replay this again you've already you're already out of court you can bring that up on appeal it was not replayed there was no agreement with me or i'm sure michelin as to what the status of that was i'm sure i would guess plaintiff believed having been disposed of it would have been preserved had he objected and done other things in terms of getting a folder novo review but it was not included in any of the amended complaints i will say the amended complaint that led to the summary judgment many claims were dismissed by summary judgment only two claims one has to micheline one is to go and actually none as to micheline with respect to that amid the complaint are being appealed district court did allow him to then file one further amended complaint only against michigan ga ga and was out of the case at that point all claims against it had been disposed of on summary judgment so they were really three series really four complaints one in state court then he dropped all g m the end i trust claims were dismissed another amended complaint all the claims in that amended complaint were disposed of by summary judgment than a nother amended complaint with the one claim against michelin well let me just say i am on this sandy trust thing it's not entirely clear to me that we don't have a relevant market because they're allegation is that they were using the race car business to enhance their reputation in the sale of after aftermarket parts for other race cars and in building right now i know g m is not in the business of building race cars other than you know corvette but what about this  you know arguable competition of the after market for those kinds of part with g m sale of part well i guess address and two ways first with respect to  section two liability there is absolutely no allegations that general motors somehow monopolizes or is attempting to monopolize the after park market for four carets or any other vehicle with respect to section one liability were was there some agreement that would harm competition in the marketplace again there's the if the relevant market is aftermarket parts he said there's no allegation in the complaint that the after court market as a whole was in any way affected by any action by g m in michigan michelin in the third point i would raise is it section one liability requires an agreement between g m and michelin ultimately because the plaintiff went forward with his claims of tires has some ability to put pressure on michelin i guess would be the best reading it's not that they're in competition it's michelin wise think that might be you know if that fact is true that might be a pretty good incentive to  that's not necessarily illegal that's that's where i was going you're either has to be some agreement between michelin and g m to affirmatively try to suppress or hurt competition ultimately the district court found in relation to conspiracy claims and other claims that required an agreement between michelin and g m that there was no evidence of such an agreement i don't think it's properly pled in the complaint because he didn't say when it was made how it was made clearly we've already focused on the idea my client g m can only be responsible for anything that happened after july ninth of twenty two thousand and nine but in the complaint there's nothing that says ok on this da michelin got together and they made this agreement but even putting that aside the district court ultimately found there was no such agree now i think if if that is an issue that somehow the complaint you could evidence that michelin in general motors entered into an agreement to not provide him talks all the evidence was michelin made an independent business decision based on dealing with all these competitors who they wanted to work with and who they didn't want to work with is there any allegation in the complaint and again he didn't keep presenting is that climate is amended complaint is there any allegation they are that this supposedly alleged agreement between and g m in august of zero nine that at that time they were still trying to race is there anything that says we were still trying to race but couldn't get those tires well your honor i i'm not sure on the exact date i believe they did at least attempt to race but i will tell you on august ninth general motors was not racing they didn't race in two thousand and eight i believe the first race they enter was in september of two thousand and nine was the first race general motors even put a team together and us and the corvette racing team so i don't know that there was ever any head to head racing competition oh tween elegy motor sports and g m and now you're maybe bringing things into the record that don't to i'll tell you the truth i would have to force it my recollection is he did not plead with that specificity he was pleading about and mostly about things that occurred in two thousand and eight and two thousand and seven when he bought the car when he was trying to get the race team going but i cannot affirmatively say there is no statement i just don't believe it is in there i could look and find out easily enough with respect to the summary judge but i'm looking mainly relies on evidence that's frankly was stricken by the trial court and was never taken to the despair the magistrate struck it never went to the district court and of course he doesn't address it on appeal the defamatory statement that he's claiming was made was stricken by the magistrate judge because it was hearsay the the contract he claims that he would have had with the driver evidence of that was stricken by the magistrate because it was speculative no where after that is there ever an argument by the plaintive that that was improperly stricken the district court should have considered it or anything else so back on that basis alone i think the summary judgment problem and  and he says that is the only lawful act of g m that supports tortious interference with prospective contract that's the only thing he points to as the unlawful end of that supposedly september of two thousand and nine year old may please the court my name sounded like a comment judge jones having brought up a point i don't believe this in any way would require more recusal but i have a brother who owns a cadillac dealership so if someone wants to try to get me recused on that basis to quote someone else bring it on but i don't see that as an impediment michelin has no objection why i'm not surprised you don't but this really you're on notice i need time addressing the promissory estoppel claim in the judge's entry of summary judgment on that claim it's a claim that's governed by texas law there are four elements of promissory estop claim we contend and we believe we argued in our brief that the plane to fail to make a disputed issue failed to submit sufficient evidence to create a disputed issue of material fac on any element the promissory estoppel claim is based on a thirty minute meeting that occurred in atlanta at the petite lamont in october of two thousand and seven know no matter what happened actually at that meeting the district court concluded on the basis of mr  that at a minimum mr chalabi left that meeting understanding that a contract would be required with micheline before he could receive mission racing tires for the two thousand and eight season mr chalabi also testified in its undisputed that he understood as well that he would have to post a performance bond the amount of which he didn't recall that he would have to provide proof of sponsorship that he would have to provide proof of funds and that there were additional details that would have to be worked out and we believe that under the relevant case law that this undisputed fact that the district court relied on precludes the plaintiff from showing at least three of the elements required for promis estoppel first of all because a contract would be required the parties would have to negotiate and execute a contract because there were other elements that would be required before he could up tain the tires there was no promise that could be enforced it was just too veg to be enforced judge jones offered an opinion which judge product joined i think it was in two thousand and ten it was hartford fire insurance opinion car fire insurance company versus mt bellview city of mt bellview texas and we cited a number of other cases in our brief but that case holds that the promises there were two veg to constitute a promise that would be enforceable in that case to preclude the running of the statute of limitations with think they were similarly vague here similarly veg under the cases that we've cited in our brief second element is that the plaintiff l g has to show that they reasonably relied to their detriment on that promise now soon that the promise was made as the court did if l g motorsports knows that a contract has to be negotiated and then executed then they can't reasonably rely to their detriment on something that was said at the meeting the law does not allow a party who knows that a subsequent written contract is going to be required to claim that when the contract isn't executed well i can proceed on a promissory estoppel there is a correct that there was some evidence that they had already purchased a car or were buying a car for a hundred thousand dollars before yes the car discussion  judge they had all that's another reason why they could not reasonably have relied on anything that was said at the meeting because they had already made the decision to purchase the car more than a month before the meeting well they had put down a hundred thousand of what seven hundred thousand four hundred seventy one thousand why did it to the tires cost a half million dollars had they purchased them is that right th michelin told him he should allocate approximately a half a million dollars for the season four tires season for the season four tires they run four to indicates what tires they had used in those races but i don't believe there's any evidence in the record of a programme lation ship with michelin or with michelin racing in with respect to the prior walk away from the agreement that he had with right so well however they characterize it they had made the decision at least a month before they met with michelin to buy this vehicle  said i couldn't walk away from it it was a preexisting duty that's not detrimental reliance in that in addition you can't then remake the decision once you've made the decision to buy a car you don't remake it subsequently you maim make additional decisions but you've already made the decision to buy the car and that was the evidence that he had he testified in judicially admitted by by affirmatively pleading it that he made the decision to buy the car on the basis of  the third element that is required is the plaintiff has to do some sufficient evidence to create a material dispute a fact on whether michelin could foresee there were lines now for the same reason that l g can't be detrimental were reasonably rely on statements made at the meeting when it knows that a contract has to be negotiated in executed in a variety of other things have to come true to fruition micheline could not foresee l g relying on something said at the meeting knowing that the parties would have to negotiate an execute a contract finally although it's not dispositive of the issue i would secure the fourth element of a promissory estoppel claim under texas law is that injustice can be  avoided only by enforcing the contract i'm sorry a stoppel is a supplement to the law contra it's not that it's not to supplant the law of contract and in this case it's undisputed that mr chalabi left the meeting in october two thousand and seven knowing that he was going to have to execute a contract we submitted to the district court an example of one of the contracts we execute a contract had a variety of protections that would have been available to michelin had the parties actually consummated the contract that everybody knew was prepare for tires to the owners specifications or does it have us racing class type tire and the whole point of this contract is just to secure payment first or mine no it's a it's it's a very complicated process your honor micheline in addition to supplying tires that are specific to the vehicle the one thing in the record i think you'll note is that michelin did not even have a tire that would have fit the l d corvette in two thousand and eight all of the michelin tires and this is also undisputed that were available at that time so what was miss mama promising well we would say judge that she wasn't promising anything but that's a question of fact we're talking about tires so let's assume i mean i and i remember that point that you made but but all i'm asking is when you're talking about providing tires for a race car yes right owner of a race car are they custom made tires for that car or yes me in addition we provide an engineer that evaluates the performance of the tires on that  so yes they are cost him for that vehicle it's not just a statute of frauds deal in say it is a contract for services not just not just goods it's primarily goods but there are services associated with it yes me in it i don't know that i believe the statute of frauds does apply but it's not essential here for the other reasons that there was no reasonable reliance ok thank you i'm just curious is the record m did not want l g motorsports to have the tires michelin refused to even provide castoff tires which were not as good as those being used at the time they went so far as refuse to allow l g motorsports use commercially available over the counter tires in the race by labeling them as things of that nature a direct competitor of that entity entered into an agreement with g e admiral other retailers to preclude it from proved to preclude them from providing those necessary elements for competition the supreme court said that let me also bring up that the defense nikkei said well there's no there's no injury to trade there because this is only one computer an obviously you go all over san francisco and buy these type of refrigerators or what have you the supreme court flatly rejected that notion and indicated that whether used to help out competitors one at a time or in full gallop it's still an antitrust injury sink in your honor the nature of the race is for consumers to you to purchase tickets to these races to view them on t v the nature of the mace in the race itself is made qualitatively worse such that the consumers aren't getting what what they deserve and a large part of that is this david versus goliath nature of the competition between a non factory corvette team and a factory corvette team an upstart versus an entrenched entity and so when  influence michelin not to provide tire to its upstart competitor the race quality is made worse it's almost as if i think about march madness it just went by if you stop the mid majors from being able to compete at the sixteen and fifteen save vs the one in twos the march madness it's not as good it's not as interesting it's a worse product for consumers and third i think that the injury to innovation with an upstart is also an issue because obviously no one has the budget the g m has and l g being able to compete on a much much smaller budget drives them to engineer new and different ways to try and keep up which they do and which consumers enjoy in cars but as myerson they've also started to get into selling porsche items as well as in the end do you have any objection to my or judge barksdale sitting on the case of course not your honor