agreements to reduce apply as per se at a competitive and have done so for almost a century and a t v to see why a horizontal supply reduction agreement is really the functional equivalent of a but that's not this case because in this case we have a jury finding and at the jury verdict form at trying to panix page seven hundred and sixty eight that there was an overarching conspiracy to reduce the supply of i also found your honor that rose acre participated in the conspiracy and that it was a reasonable restraint of trade and that's where we think the legal error is your honor so called mixed motives case that is not this case because here the jury found and we have no quarrel with the instruction that told them that there has to be an intense and in fact to reduce apply to find a conspiracy here the jury found under that instruction that here rose aker participated in a conspiracy to reduce the potus so any any issue there would would go away we'd also suggest your honor that the mechanism for how supply is reduced doesn't matter we say cases from the united states against a county vacuum to the president showing that it's not a mechanism need not be an express supply reduction in order to satisfy error to allow that finding once the jury had found a conspiracy to reduce the pot your honor we think this should not be the st case in the history of the antitrust laws to d m a horizontal supply reduction conspiracy reasonable you know and we think the only issue really for the environment isn't it possible the whole of and the jury hey yeah one of their intense was to reduce and at the same time say it was ok for them to beep thinking about the plot because of these other things that were in them that it was you know you were going to increase you know that these other things could be in the mix and the jury also say oh yeah they were thinking about reducing supply but they also had a good thing in mind and therefore we think it wasn't going on the book restraint of trade why is that or why is the finding that there was that one issue or motive might have been a reduction of supply by that fact alone the driver of everything else because your honor the nature of the per se rule is a conclusive presumption that no matter what the set of motives at stake if the intent and the fact of the program was to reduce the part i that's the end of the matter it's are per se anti competitive without regard to balancing any possible reasonable ness or pro competitive aspect and your honor let me just point out a couple of other aspects rushed past the point that we're trying to explore which i want to  rules are are to be adopted only when you can predict with confidence that in all almost all instances  all supply restraint sions remain subject to the per se rule it league and did abandon the per se rule of anti competitive ness for vertical retail price maintenance agreements but it expressively distinguished a case like errors the supreme court said oh those horizontal supply restriction cases there's no subject of the per se rule and then there's a case where in light of question one of the verdict form i'm sorry your honor i'm trying to was a reasonable grade good things were happening as well and that there were so if the jury thought they're looking at the supreme court's language in league and why wouldn't we say well clearly it's not the case that this would be valid in in every case where the rule of reason was the why because the jury thought the rule reason applied it wasn't unlawful why is it that based on the supreme court's instruction to us it would say no per se doesn't apply well your honor because the jury was erroneously allowed to reach the rule of reason in the st place the jury should have been never given question three on the verdict form and never instructed to imply the rule of reason because it was in one that you would that object to confront the trial court don't give that verdict sheet to them yes it was your honor in the following sense we went to gated the per se rule versus the rule of reason willing to try the case under the rule of reason under protest while preserving our appeal that the per se rule should have a pod and the district court acknowledged that preserved objection in several places your honor i would cite in particular join context of your client saying that the others it was about in a way that the right well no your honor what the district court went on to do is hold on the merits that the rule of reason applied and we made a and eighty two of the joint appendix the district court reaches the merits and says no i'm applying the rule of reason over over your objections that the per se rule applied your honor we think that you needn't we think we did preserve but you also have a route under rule fifty nine dollars easy to amend the judgments to conform to correct a clear error rule and avoid clear error of law and avoid manifest injustice so we think we did pretty we think if we didn't preserve that you can rule on plain air and we also think that the easiest route here given that we have a jury verdict is for you to reverse the court's denial of arran motion to that briefing never happened did it it did your honor if i could respectfully disagree with you that briefing did happen and i'll cite you the exact pages of the joint appendix where it did in the joint appendix at pages two  no your honor with respect what happened in the course of the charge conference was that the district court came to a set of instructions and a verdict form which as you can see from the verdict form itself trying to panic stage seven  asked the question and question one do you find by a preponderance of the evidence that there was a single overarching conspiracy to reduce the plight comprised of all korea short term supply recommendation of the united egg producers certified program and united states egg marketers exports and when the judge came to that position there's no question that the defendants had an opportunity to disagree with that struction that their jury would look to one overarching conspiracy involving all three and they didn't object so we believe that we preserve and your honor if i could give you one more cite joint appendix had nineteen in the charge conference you'll see that we unlike my colleague who was the trial coun to say do we need to repeat earlier objections and the district court said no you don't with all your prior positions are preserved and she reiterated that in her rule fifty nine eve ruling at joint appendix page one hundred and eighty seven  she said the defendants repeatedly i'm sorry the plaintiffs repeatedly asked me to apply the per se rule to one overarching conspiracy including all three parts and i recognize the district court said that they tried to preserve that for appeal notwithstanding that case was tried under the rule of reason but your honor we have a verdict now and i think that these are to the extent there are details factual issues about who preserve what when where and how we think that you know the purpose of course your honor of notice and waiver doctrines is to make sure the district court was fully apprised of our position and it certainly was but now in our view your honor we think it certainly was but we now have a jury verdict verdict the jury here found one overarching conspiracy that included the suppliers section was and the export program good yeah we got it we understand that and i guess what you're pressing the can we understand the point is a conspiracy among the producers of turn restricts a pot and your honor for example the jury didn't find all three egg producers liable here is it the last it answered no to the question whether ohio fresh eggs an r w souter participated in a conspiracy so your honor it would be fine for a producer unilaterally to respond to the animal rights folks but what the antitrust laws for bed is getting together to say hey let's all respect supply by reducing the number of hands that are laying and increasing cage requirements because that will reduce the supply of eggs and your honor you know of course there is ample evidence and that's a trial to support the view that the effect was to lead to higher prices you know the producers congratulated each other on having raised a one billion dollars more and so forth and we have to remember that the other producers did after all settle for one hundred and thirty million dollars here so i think the jury verdict my simple answer judge twenty days would be you don't have to enter a conspiracy in restraint of trade to satisfy animal welfare right and fresh eggs in r w sattar were let off the hook by the jury and there's no record was that egg pile was restricted compared with what it would have been but for the conspiracy so we are comparing the but for world no conspiracy there would have been far greater supply  if you can just look at and supply increase from the prior period to the class period you have to look at the class period versus the but for world of no conspiracy and there there is overwhelming evidence that eg supply was decrease compared to where it would have been and that prices went up nearly twenty percent as a result and you know i don't realize we're kind on a time crunch here and i should i should make council wear that being present by phone recognize this is unusual but we're all an unusual time having said that with my colleague bill didn't i do want to ask a question which i think is like  would use what's your what's your response assuming for the sake of argument we thought you were right then we would have to front that issue what your argument for how you can now you respectfully ask that you reject the cross appeal on class certification and let's be clear there's no challenge here to the initial class certification order and if there is only a challenge to the failure failure to decertify after the class period was narrowed to two thousand and eight therefore all of the findings that judge crowder made in her initial order of trying to pending one through sixty one to certify the class really can't be contested now as to the rejection of decertification we think that judge kreder correctly rejected the argument for decertification and that is because this case is about class wide evidence of a conspiracy the supply of eggs and drive of egg prices and it can be that it can be defended against with class wide defenses and everything that the other side everything the defendant has said about what's wrong with dr sears model is really class wide objection to the evidence and that's classically for a jury to decide it goes to the weight and strength of the arguments about the class injury it doesn't go to whether it's class y and remember your honor we've now had a trial which was tried on injury the jury didn't reach injury of course but it was tried based on classified evidence there was no individualized evidence and it's easy to see why we we tried we put on evidence that the producers got together chris trick to the supply of eggs drove up the price of eggs nationwide and haitian wide market and there's really no dispute here that it's nationwide so your honor that i can give more specific reason why the post two exactly the same your honor and that's because as you know in most markets a supply restriction drives up prices and the evidence was overwhelming here that that's how the market this behavior people don't buy less the kid missions by defendants that their program is working to drive up prices so that we we were guarded in the supreme court regards them as the same thing your honor and that was reiterated in league and lincoln didn't do anything to get rid of that assumption which  this is a rule reason case and it's not even a close call and the verdict did not and couldn't change that fact there was a six week trial and the jury found that rove did not violate section one of the sherman act and to be all or say rule and lose what why what's wrong with her argument a few different things st ok we have to keep in mind it is the court and the court for setting the parameters and that this was a rule of brief in case we tried our way it was presented to the jury and struck that way and the jury comes back and says there was a conspiracy to restrain supply questions one and two and nobody question three but we do not believe there is anything inconsistent about it because merely using the word conspiracy to reduce supply whether in the complaint or even in a verdict form manically invoke application of the per se will there are legions of cases where there are conspiracy to fix prices to peers to review supply and yet they have been held to be a rule of reason because the conduct that we're talking about did not fit the mold a person take on that which is basically manifestly and competitive with no redeeming virtues that's not the case here so simply the jury finding which was a conspiracy we do supply comprised of a b and c the three different mechanisms they allege were unlawful all of those mechanisms or in fact rule of three of them and the jury charged under the rule of reason so it and that they found what they found in question one into in a universe the find by the by the rule of reason and their finding cannot somehow because there are some programs pending to benefit because it is not clear and it's not sort of automatic that these agreements what reduce apply we are not going to apply the per se rule the person rule is only where that is the only the all that and the competitive effect are the only reasonable consequence from the action over here that's clearly not the case and there is nothing about this conduct that you have gotten together and conspired you you meant to do it and you did that that seems to be that from question one question to being answered yeah i doubt we're all but note where those things have to say yeah this is all right this is not an inconsistent verdict then to get the question three even assuming you plead to it the question three you could get the question through and properly  and wrote baker's participant participation in it in fact yet it may have been one of rothe acres of jack do to reduce supply but that does not mean that the doubt that they did actually did reduce supply in fact that can't be the case because a we know the plight grew and two we know that in answering question three in fang it's not on reasonable what your whole hold on  in the way it would but for the clear something that would have been more there would have been more eggs on the market if you folks had gotten together and and clamped down so that you know you can call that an increase well i was just hired to defining a number one is that there was a conspiracy to you supply that that that was at least one of the objectives but remember the the evidence the trial yes the pla that either there was no end of competitive back which means that they discounted and that any any proof that the x applied would have been greater than otherwise was just simply not true or that even if there was some kind of competitor the fact there were the pro competitive benefits of all of this conduct outweighed it so it's not a foregone conclusion and and one have to remember when you look at when you look at the conduct there's nothing nothing that says you need if you feel the take the certified program as an example what it does at most is say you have to give each had a little bit more space  and if you have a confined space there could be fewer and fewer that's all understood but again it's a to me like you're going back to argue in a factual point that the jury just disagreed with you on the jury said there was a conspiracy to suppress supply the jury said your client was involved in it so we're clear where's your benefit in truckee they well maybe it may be a really there are other things you could have the jury look at it could you know it was a intent is and even if we have an intent to reduce supply that doesn't determine whether the per se rule reason to apply and therefore even granting question one in the way your honor articulated in tech still doesn't determine whether in fact per se should be applied or not per se needs to be applied only where two conditions exist there's an obvious manifest pernicious and i competitive a fact and there are dant brown university that to test for say is one of substance not the magic so it's not calling it a conspiracy theory three to supply or not that will determine it is ok let's look at the actual applying the rule of granted there's nothing left for the per se rule there's no there's no place for the pursue a rule think that there no i don't believe that that correct your honor because again the judge is going to look at it and that summary judgment whether it's before the charging conference and the judge will look at the character in nature of character a nature of the conduct and and we can see if there are any plausible pro competitive justification in many cases the pro competitive justification is well if i compete i'll go out of business in the supreme court that that's not a plausible pro competitive justification but where there are possible pro pro penitent benefits that offset the restraint of trade that that is by definition applying a rule of reasoning so if that's the operation that you go through there's no such thing as a person a rule left is i don't think so because you know you can determine just essentially in african council what are the plausible pro competitive justification the possibility of their argument is i yes if you're adding are there plough possible pro combatant justification it seems that if you're doing just the very thing that per se x you not to do but once you understand what the per se rule is all about it makes perfect sense and because the per se rule a judgement by the judiciary that they have sufficient experience with the restraint at issue here that they can say they know the end of the story already they  know that it's only going to have an anti competitive of fact and there can be no redeeming virtues so i don't believe that argument meaning the death of the per se i will know that median and and and the  court have noted that both supreme court have have been pulling back from the per se rule over the last few decades because it is it is you know it just applying the label allows you then to sort of scoop up within it pro competitive conduct and condemn it summarily when that should not be the case and the fact that th pro competitive benefit and as your honor had alluded to earlier the certified program with a legitimate response to calk tumor demand because tumors wal mart among them albertson's kroger safeway who are being picketed by the animal rights groups and the like and came to the industry and came to every industry in fact and said you guys need to develop a standard by which we can prove to people who we are selling food made in a more humane environment and that's exactly what we did and responding to cut to customer demand is probably number one on the list of program pet it benefit it all right i mean we're we're of the obvious and manifest and a competitive a factor at the supreme court then it always or it can always almost always tend to restrict output and have no redeeming virtues then then yet and so that is the type of conduct at that category where it can be pursued a but simply calling it a conspiracy to reduce apply in the form over substance you don't look at the label apply to look at the congo that that thank you your honor i'd like to begin by agreeing that horizontal supply reduction conspiracy is always trigger the per se rule of anti competitive ness and counsel on the other side was unable to cite you a single case that found otherwise except for n c double a which is clearly an appreciable here because the egg market would exist even without this joint conspiracy as we know from the fact that the jury let two of the producers off the hook here you don't need a conspiracy to serve consumer demand here you can do so you know laterally so there is no case except n c doubly and it's distinguishable the nd mr levin said it shouldn't just be about labels but this is not about labels the jury found an overarching conspiracy to reduce supply and it found it with respect to short term supply restrictions like killing and not replacing hands and exploiting a coordinated export program to sell eggs abroad at a loss in order to increase domestic prices and no one to advance any pro competitive aspects of those those programs which are clearly to reduce supply and increase prices your honor we agree that the court that's the legal standard for the analysis but the court legally heard here in imposing the rule of reason i'm a conspiracy to reduce a part of the verdict is inconsistent it is a contradiction in terms you can't have a horizontal conspiracy to reduce supply that is subject to the rule of reason under one hundred years of law so the verdict form was improperly asked the you reverse under rule fifty nine dollars easy which is the simpler approach or for instructional error or for error in the initial summary judgment but your honor after the jury verdict it's not about labels it's about a finding of a horizontal supply restriction and that should have been the end of the matter as to balancing any pro competitive the facts your honor at the capper of all said does not create any exception to the per se rule unless it statutory requirements are met there's no dispute they weren't met here it's conceded and about and talked about agricultural qua produce and thought that these were good weather that doesn't actually weigh one way or another in considering whether rd behavior among  producers is something which would be cursed i am awful yet your honor and to answer your question we think not we do not think the existence of the camper volstead statutory exception for agricultural cooperatives alter location of the per se rule to an agricultural producer conspiracy to restrict the pie unless and until the letter of the statutory exception is matched and they it's conceded it wasn't met here and her reason is that i  labor we don't think this court should be the st to create a new judicially created exception the congress didn't provide hirano we think it does not alter the default anti trust law applies and the per se rule applies here unless and