the reason i rushed up here is that i have two housekeeping matters and i'm hoping it doesn't count against my time you want to house keep me exemption to the how long are the housekeeping but i promise you that the the st thing is i wanted the court to know that counsel and i've decided to there's a motion to us right here that's part of the record and we've decided to rest on our papers on that particular right ok you didn't need to say  that i didn't well if you don't regress should we assume you're resting on your plan just so you know i'm sorry the nd is that i have a handout usually one would do a poster but most of the evidence here is does this counsel have this yes counsel s are i just want to make sure you have ok and then i have a rd one i'm sorry oh hey thank you thanks very much all right said all the housekeeping that that that's it iran of all right go ahead and start the clock supermarkets in the greater boston area as the court knows we while a companion case to the midwest case we didn't get a trial in this case and we didn't get certification in this case in fact the point of that i represent joined the case after it had begun and were not present when class sort of occasion matters were handled in the past and in this particular case the expert used a benchmark method called a contemporary benchmark in this case a gorge grocery chain in the group boston and new england area called stop and shop which competes for the same customers uses the same supplier has mostly the same products and is similar in all but a few respect that are material here the benchmark methodology the contemporary benchmark methodology is one that's been approved for a long time since bigelow versus r k o pictures it was in the latest volume of econometrics sort of the bible for that sort of thing it was an approved and in fact preferred methodology and we submit that the expert did a very good job of separating out the factors that might have confounded his analysis in the case the difference between stop and shop in the individual  grocery stores really boils down to a few important ones course stop and shop is much larger and of course a buys a lot more and its product mix may be a little different so the usual method of analysis which is what the expert used here is regression analysis equations that are tested statistically to determine whether those factors confound the study he found to course that stopping shop would have a better pricing so what he studied was the pathway of the pricing after the antitrust violation occurred but the words after super value abandoned new england looked different that had a different pathway than stop and shop and they found that they did that they diverge quite dramatically during antitrust period and he reported that the court did not judge this matter with the usual jobber factors there was no question that the expert was well qualified that he was that he did is who were rational analysis well and that his calculations in terms of numbers were correct instead the issue that was raised boils down to comparability particularly is that the issue of comparability has been found around the united states to be an issue for the jury to begin with questions of antitrust conservation and harm are complex of the problems that i and maybe this is what you mean by comparability but that there was that there wasn't a way to show that that the same pattern that that stop and shop a big  retailer and the smaller ones would be acting in the same way with competition that they didn't have part of the benchmark is well how were they how what was the comparison between those two assuming a competitive that makes it separate from anti trust pricing and that is its ability to sell supply its own expert had been a consultant for stop and shop and he testified that the ability to self supply the stopping shops ability to self supply meant it wasn't subject to antitrust pricing so you didn't have to study before period you had a factor that separated when you had to see before the what the relationship was between even assuming it is impervious to this sort of anti competitive nature that it can it can stand on its own they still have to look at how it was all working before even assuming that well respectfully your honor the expert says you don't but and i'm not an expert but let me let me try to make it sense to you that competing in the same area super value is truly percent again hypothetically it's twenty percent of the market it means seeing us was seventy happening before in the year before the antitrust conspiracy was that the prices were sort of moving together and other words that the the independents were getting a little better price in terms of the pathway in relation to i'm getting down through close to where i am i'm going to stop and so in addition let me show you this chart that i i brought along and tell you why i brought it if there's a dispute which i'm sure my and i wanted to show you on the nd page is what the defense expert presented he said that frozen that's this page here that frozen prices fell off a cliff in two thousand and five and never recovered our expert provided the chart that shows not that but a gradual decline what the difference was was that the expert for the defendants left out fifty percent of what goes into a price the rd page shows you that he admits he left out for dates he also left out other adjustment factors the reason why show this to you  judge montgomery who has been managing this case for a decade abused her discretion in excluding plaintiff's economists is unreliable and and speculative she didn't it's important that we start with a clear idea of what the plaintiff's in case declined by nearly forty percent during the alleged impact period so the plaintiff's whole theory of injury here is that they would have declined even more if super value had stayed in new england and he tried to support this with the opinion of dr levy who took a single large customers stop and shop which was seven hundred dollars times larger than village market and was in fact partially self distributing and whose up charges fell by fifty percent during the impact period a decided that stop in shops price decline should be the benchmark for what every other retailer in the midwest i'm sorry in new england's prices would have done if super value would stay in the market and the district court properly excluded that opinion because dr levy never supported his speculative assumption that independence prices move moved in tandem with stop and shops in any time period or any geography that was unaffected by the alleged acid exchange or for the alleged violation and he dismissed undisputed evidence the stop and shops prices declined during this period for reasons that were unique to stop and shop her twitter careful twenty five page opinion on these issues is a classic exercise of the district court's gatekeeping authority under delbert and because she didn't except of use her discretion in that regard summary judgment necessarily followed because there was no evidence of and i trust injury beating cheney it could resistor avoid any attempt by cns to charge super competitive prices and he then leapt to the next conclusion which was and since stop and shop had stores in the same region as village market just montgomery carefully looked at it and she found that it really came down to a speculative leap of faith and this court's precedents are legion that expert opinions based on speculative assumptions that aren't purported to verify his assumption he looked at eleven retailers out of fifty which did not include the village market and he looked at their previous prices for the the eight months prece exchange and he found consistent with our expert that there was no significant statistically positive correlation between their prices our expert pointed out in response to dr levy that dr  report just had an assumption that the independence prices would follow stop shops in our expert dropped a footnote saying and by the way even the eleven retailers that were supplied by cns before the acid exchange their prices had both positive correlations and negative correlations with stop and shops which doesn't show anything dr levy came back and said well as a matter of fact there's so few there are so little data that you can't draw any statistically significant clue conclusions about correlation because it could be either positive or negative for any one of them mr daigle alluded to dr levy's opinion that well before the acid exchange they were b b increasing most of them were maybe getting slightly better analysis of our critique of dr levy's report was did he need pre eighty eight data in order to establish what you're saying he assumed in his report he needed to do well he could have done it in a number of ways he needed to find some way of supporting his assumption that end some time period that was not affected by the alleging and i trust violation that there are some basis to believe that if stop and shop prices go up the independents go up if they go down the independents go down so he could have looked at which he did not adequately do he could have looked at data from markets that were unaffected by the alleged and i trust violation x in this case he didn't do that he could have looked at data after the alleged conspiracy period ended in two thousand and eight there was a whole year of cns data from two thousand and nine and by his own admission he didn't look at that data either instead on appeal  council argues that well village market negotiated a very significant price decline in twenty million sixty two thousand and seven that should count as the validation of that competition in fact would have caused his prices to go down more the problem with that theory is that there is not tied to any alleged change in the structure of the market there's no allegation that super value came back into the market in twenty million sixty two thousand and seven there's no allegation that any new competitor entered the market instead it was based on competition we're going to see a nice documents from associated grocers new england somebody who had been in the market competing for village markets business the whole time in fact village markets got a in the underlying cost of the product would make stop and shops fees look smaller as a percentage of the cost of the product over time in two thousand and two stop and shop negotiated a seven year recall requirements contract which meant that i had to produce minimum had to purchase a minimum number of cases of of drag grocery from cns and all of its requirements for frozen over the course of seven years and it's up charges unlike village markets were not set as a percentage of the cost of goods they were flat per case fees so over time a flat per case feel over the life of this contract appears smaller and smaller as a percentage of the cost of good in this case a fifteen dollars case of of product in two thousand and two when the contract was signed would cost eighteen dollars twenty four cents using the standard c p i adjustment by the end of that period that would have resulted in a eighteen percent reduction in what it appeared to be stop and shop prices over the time period and dr levy counts as damages his damages the village market and he does that and they and  argument was well stop and shop had this unique ability to supply are going for this type of provision and village market didn't it had to negotiate for a standard pretty percentage of charge the problem with that theory is that stop and shop negotiated this contract in two thousand and two which was a full year before the asset exchange agreement and village market before the asset exchange agreement was paying a percentage up charge so this difference that they're pointing to is something that has absolutely nothing fifty two thousand and five cns shortly after having merged with the major d c chain called giant of landover brought all of giant of land overs business for tooth two hundred stores in the d c area in frozen to cns and under a new a dent into the existing two thousand and two supply agreement and in exchange for that according to mark grose who is the person who negotiated this contract on behalf of c in exchange for that cns agreed to reduce the up charges for frozen foods for stopping shops new england stores so this was a reduction of charges in exchange for business outs brought in outside other way to two thousand and nine i these are the factors that dr levy then addressed in his rebuttal report he addressed them in his rebuttal report but all he said was i just don't believe that cns would have reduced up charges in new england in exchange for the stop and shop trying to landover business in d c so is that is that different than taking it into account in your own analysis i guess what i'm trying to get at is where where is this line between us arguing about or discussing the factors that go into whether this is a good benchmark and whether or not that there's been proven to be anti competitive harm and how and where does that where's where's the line drawn where we say th this you know it's gotten a card reduction in new england again i think the supreme court said it best and brook group versus brown and williamson which is an expert can interpret market facts but an expert's opinion cannot substitute for market facts and that's what dr levy was trying to do but on whether this goes to the weight or admissibility i think of one case would be instructive was is the craftsman limousin case which dealt with another benchmarking exercise that was an antitrust case involving lost profits damages and the expert in that case said well gee before the alleged group at the plaintiff's growth was experiencing a sixty percent annual growth rate in its limousine business so i'm going to assume that during then in a competitive market during the period of the conspiracy that that growth rate would have continued to increase by sixty percent but the expert didn't take any analysis didn't do anything to try to desegregate the effects of other factors other factors that may have caused its growth rate to be different and that is exactly the problem we have here in that case that the district court admitted the opinion testimony but this co held that it was reversible error to admit that testimony the same type of holding was reached in the concord boat case where a fifty percent benchmark was used in which the expert a pundit will any time to defend his market share went over fifty percent i think that the result of unlawful competition i'm going to calculate damages based on that but the expert had not accounted for other factors that could have caused its market share to go above fifty percent including the recall the competitor's product a merger of other two other competitors and that's the problem we have here what we have is basically an assumption that stop and shop prices would have declined by fifty percent and that everyone else's prices would have declined by that much as well and when asked well what caused what caused this reduction in stop and shop prices dr levy said i don't know have you tried to find out no i have not well have you studied whether there was some industry wide factor that would have caused every retailers prices to fall by fifty percent he said no i didn't do a study for that instead all he did was when other reasons were brought forth both in our expert reports and in our dollar motion he submitted declarations and additional opinions trying to account for those factors but he never really did so so even right now mr dingell can't tell you what caused this decline we've submitted undisputed evidence that the decline was caused by factors that are unrelated to the conspiracy because of that and because there was never any statistically valid showing what would your  position would yours be that you have shown factors that could have caused the decline i think we showed factors that did cause the decline we don't know keep in mind as the responding party we don't have the burden of timing it out we all we have to do is point out that dr levy has not taken into account significant factors that caused a decline that he is counting his damages in concord boat and in craftsman limousine this court didn't go so far as to say while we find no damages they felt that the they found and they that the district court should have excluded it that the opinion because the expert hadn't done his work to show that there are the defect to please please the court to answer the court's question yes he did use a e a data he used it well he did not say that the data couldn't create statistical significance what he said is when the other expert did his study he didn't do any statistical significance testing so that they other experts study had no meaning in terms of drawing the line here was whether or not as between conflicting narratives conflicting stories of what happens if the plaintiffs story is not completely story holds together and in most case there's no question when one reads the report the rebuttal report that exact factor brilliantly i fail and reads the declaration that hammer of been analyzed every point that the actual reports are true are very good and what happened was the judge failed to realize that appears to a field to realize after an a negotiated stop and shop two years before the end i trust conspiracy and said that the power of self supply drove the prices you didn't need to do a before and after study because you had a both experts said it was so it seems to me it was a i'm not going to say on the part of the court but it's like when i answer your question i'm not an expert we have to rely on experts does the opinion shows that from some bumps in the whole story the graphs that i showed you showed you a gradual path even in frozen when you look at the charts in the report it's very clear what's happening the plaintiff's prices are staying the same or going up and the fandoms are going down it was a down market stop and shop got a fifty percent reduction it doesn't have to be perfect in the antitrust to hold muster that's all  this was clear enough i brought a lot of time i wanted to mention the classification and i could just if i may finish with a sentence all of these questions that have been talked about here and everything in the