good morning your honor is my name is mark po and my firm had the pleasure of trying this case below and now with their co counsel from goldstein and russell we represent the trends that are parties on appeal and i am generous there are about three minutes i'll keep my eye on the  clock of course i want to make sure that i address any issues that your honour's may have thought it but for my part i want to cover three topics first i want to talk about switchers failure to preserve any instructional error with respect to the proposed instruction twenty nine and then i want to explain how even a swisher had distinctly stated the grounds that its new counsel first asserted after a trial that it makes no difference to this case both because they jury was fully instructed instruction twenty nine as given on the only evidentiary test that controls even if this were originally litigated as and properly viewable now as a refusal to deal case the second reason then is that district court to grant summary judgment based exclusively on the evidence that came in a trial after immediately previously holding that swisher had rate had waived the challenge to the sufficiency that we have to unravel the summary judgment ruling for i don't think that we do i think the proper order is to ask whether the new trial was properly granted because if the new trial if swisher did not preserve  what it now says is its grounds for proposed instruction twenty nine then no new trial would have been granted and the case would have come up on appeal from the judgment that entered in april twenty sixth scene and so i think the correct order is finding out whether the error was preserved the other instructional issues as to whether they covered the topic find out whether that was harmless and then only if we get beyond that i think we reached the question about summary judgment  focusing on the distinctness of the grounds and whether the instructional error was preserved we can see that it was not and it's easy to see because the rationale recited by the district court for holding that the alleged error was preserved is directly contrary to supreme court authority and of the language of rule fifty one itself i want to quote the district court's rationale for how the error the a legit error was preserved is that you are seventeen it is sufficient if the objecting party offered alternative instructions that were denied and i want to compare that to what the supreme court says in jonesville united states nor does a request for an instruction before the jury retires preserve an objection now the supreme court of course it goes on to explain why that so it says otherwise district judges would have to speculate on what sorts of objections might be implied through a request for an instruction such a rule would commemorated in the record as a rule requires and you know we want i want to focus the court on the direct language and rule fifty one there are two some parts apartment here fifty one c is titled how to make how to make an objection to jury instructions fifty one d is titled assigning an error and it says a party may assign as error a failure to give an instruction of course which is what we have here if that party properly requested it and also properly objected and so here under the district court's formulation swisher only did one of those it offered it without stating their grounds that it's that were first raised to us as the trial counsel six weeks after the verdict came back and that's another point that i want to focus on is the fairness now i'm not a lawyer that typically resorts to fairness that kind of seems intellectually lazy but that the prejudice here is is intolerable and that's because what we experienced was even worse then a party merely offering a jury instruction with no statement of grounds because what we experienced was swisher offering the instruction and stating two grounds those two grounds having nothing to do with what came later and so when we addressed those two grounds that were offered we said we are no longer protesting the terminations of the relationship in two thousand and fourteen that had been one paragraph in our complaint we dropped that as a form of anti competitive conduct and then we said this case has nothing to do with the essential facilities doctrine which was the other ground that they had specified up we thought we were done with it now of course if new counsel perhaps had had been present at trial and they they had said during that instruction settlement conference when we met with the court the day before the instructions were given you know what actually we have a third and the third ground why we must give this introductory instruction is that this entire case is a refusal to deal this is just like aspen just like trying to go every single thing that you're alleging from beginning to end is refusal to deal you know i mean i assume we might have protested that but then when you look at the context rule or instruction the proposed instruction thirty what came in as instruction twenty nine that was already coming in anyways and that sets forth the controlling past of legitimate business purpose and so the only difference between what was coming in anyways and what would have been coming in had they distinctly stated the grounds is this proposed instruction twenty nine the only difference between it substantive difference between it and twenty nine  it was an up on instructional fare and it holds it is not fair to reject a theory of the case instruction if the other instructions in their entirety cover the defense theory and then that brings me right to my second point that i said i wanted to raise which has to do with the fact that instruction twenty nine has given fully covers the evidentiary test even if this were and again we do not can say we don't think this is this in the eastman kodak cases in one thousand nine hundred two six years after i spent a refusal to deal case the supreme court writes liability turns then liability turns on whether valid business reasons can explain monopolists actions that is exactly what the jury was asked to determine in an instruction twenty nine i was given and if we assume i mean week course we must that the jury followed the instructions that it was given it properly concluded that maintain a monopoly the other thing i should say about that actually is of course i'm happy to discuss the facts around these what are now articulated as legitimate business reasons but this is another issue where swisher did not a motion at the fifty a stage to challenge the sufficiency of the evidence that we had presented in our case as to the absence of any legitimate business reasons yes it also it leads me to another point which is during during closing again you know swisher made no reference to any jury instructions it was in fact myself when i stood up first in closing i was the one who drew the jury's focus to legitimate business reasons and i said they haven't offered any legitimate business reason let me offer this but here's the evidence showing that protection will be after this but that's not true we heard from so we have it and walked all the way through them i i should say that that you know that that leads into and again now we're on like a tertiary issue if this had been or refusal to deal case and litigated as such if be a legit heir had been preserved now we need to talk about whether or not that was prejudicial error whether or not it's more likely than not that this jury would have come back with a different verdict if only it had heard the phrase ordinarily a monopolist may refuse the deal we cited to the district court for reasons why from the record that indicate that the omission of that phrase was harmless and well before i get into those reasons i want to say that you might have noticed there was some disagreement in the briefing as to whether the standard if there are in the standard of review and district courts harmless their decision is the novo or abuse of discretion  doesn't matter because in concluding that this was harmful air the district court never set forth any rationale for believing that it was the district court only said it is skeptical that the court the court skeptical that the jury would have came back with the same verdict without setting forth any grounds and i i have in mind i'm sure your honour's familiar with like feed petitions and stuff like that where a district court simply announces its decision without setting grant summary judgment on the section two claims to the to your opponent correct right so if we affirmed on that basis then all of your argument that you've just presented would be irrelevant  reconsidering summary judgment and unless you agree that swisher properly preserved the air and that a new trial was properly granted and maybe you can explain that to me just a little  bit well i mean we can think about a couple of ways we can think about it chronologically and that you know first the order comes down that the air was preserved i'm not it was harmful and therefore we should have a new trial and then as it unfolded we were in  trial prep mode for four to five months going with a scheduling order and whatnot and then swisher brought based on air attack a motion to reconsider the prior summary judgment really so i was so if that new trial had not been granted in this would have been june of two thousand and sixteen and the judgment that it entered in april two thousand and sixteen would have been up on appeal and it would have been well of course th procedural irregularity of granting summary judgment after the trial is concluded but where that the body of facts at issue in that summary judgment is exclusively and if we look at what judge challenges and so it is a little well i think it's quite odd to say that well i can't grant a rule fifty order and so i'm going to change the title of best to and i don't mean to be pejorative to the judge of course but so now i'm going to call this a rule fifty six motion a rule fifty six order and of course that you know part of the purpose of rule fifty a and b is to preserve judicial economy and to narrow the scope of things that come up on a p r if a district court can  find it at the trial any challenge that evidence a trial was waived because it hadn't been raised and then after trials ever say but nonetheless i'm going to entertain a summary judgment motion based on that evidence w gives a little bit odd on this some i thought was a little peculiar way he handled this summer but if you if you just limited his analysis to the summary judgment record as it was preserved as it existed and overlaid the recent aerotech decision  that judge still not identified between the market that was in play and the game and the evidence regarding damages we have the market your position the market was it was regional damages yet showed national and jumps and said well there's a there's a complete mismatch there so i have two responses to that the easiest is that because we're sure is found liable by the jury both for actual monopoly and attempted monopoly i don't know if i'm fine with it but if judgment is entered on the monopoly claim that makes no difference to the verdict or the amount of the judgment because attempted monopoly would still apply but i have to say that you know judge fellow was unfortunately in correct about that it's true that our expert witness was advocating regional markets but their expert witness was advocating a national market and of course the jury was instructed as all juries are that when they hear evidence from a witness they can believe or disbelieve different parts some all or none and so it's an easy thought experiment you know john the american gem seafoods as an extra jesus to find that the jury found a national market but it awarded monopoly liability based on the direct evidence of monopoly power and that might take a second to explain other than thirty seconds monopoly power can be proven either by indirect evidence which contains a number of factors market share being one of them or by what's called direct evidence that evidence quite honestly so it's easy for the jury to find direct evidence of monopoly liability and a national market and therefore come back on the actual monopoly claim as well i should reserve two minutes thank  a new trial is the first step here because they otherwise you don't get to this summary judgment issue if you look at that first i'd be perfectly confident we've made the arguments as to why there was no procedural error but i think that there is no need to look at that for us i think this court should go straight to substance in this case this case was dressed up as an antitrust case it's not and there are several ways to get to that conclusion that raise no procedural hurdles aerotech it made no sense to bring a new summary judgment motion when we had brought one before that was based on the district court decision and i think about erica i mean i really were taken to read the other cases and i fail to see what was what was the honor that you don't have to look to us because they for reconsideration as well they said the exact same thing we did this is a this is a case you know i think my own view what players i want you to help me ok well i didn't help you  i think air attack was a decision in an area of law that over the years has caused some traditional i won't say consternation but puzzlement i mean you've got the supreme court itself issuing two cases on this essentially limiting aspen to his facts and so you know overturned no no i would say i would say limiting it was fact i think it's the only case that's ever gone to trial that's ever been held to have endorses not specifically because we're talking about seven circuit cases but the test that the department of justice and i trust the vision says applies here is the one that aerotech articulated as the one that the judge justice corsets articulated writing for a panel in the tenth circuit novella which is a case that aerotech found very influential so no i don't think that we were arguing was an epochal change to deal case i don't know what is it's on all fours with this case and so what they said the way the jury instructions were and by the way just to go back to the summary judgment we base summary judgment on our attack the case that was affirmed by this court  under the rubric of refusal to deal with the case law that articulate that with respect to the standard for dealing refusal to deal cases refusals to cooperate  originally the plaintiffs had a claim and it was in the first set of jury instructions the first of jury instructions they submitted said that one of the things we want the jury to determine with respect to and a competitive conduct here what needs to be submitted in a case that involves these issues and it's super clear because one of their claims as actually the has the words refusal to deal in it was the claim that was withdrawn and wasn't proposed twenty forty and they came back and then they s that is that is the record of course i will have to find the citation if this where you talked to that there was another theory that was raised in the original objection you had not just the twenty fourteen claim but  time what i'm trying to say is that we knew they had withdrawn that and we continued to insert assert that the instruction both instructions were proper it's important to say here that there are two instructions because there are two different issues and maybe this goes to judge letters concern that business justification defense is a defense at all section two cases that's not unique to refusal to deal cases and yes we asked for that any section to defend it would ask for that that's about motivation you have to show that your conduct is motivated at least in part by legitimate business considerations that's a subject of an injury concluded that it was not even in par was reflected in the jury instruction number twenty nine is an objective test that requires proof of sacrifice of profit and it requires proof that that sacrifice is rational makes sense only if it's part of a scheme in the long run to achieve higher profits through exclusion of competition as an objective test for two different things and that instruction was not given the jury was not i have another problem and that is as a red to blue brief and then as a read the yellow brief is here to the red brief and then i went back into the record we got along excerpts and so on i have to say that i found that the description of the record in the blue brief was accurate and the description of the record in the red brief was rappers you say well there's evidence for the record that it was not directed at t s r and you let it go at that well of course that's right but that wasn't the charge the charge was when they tried to bring sin them back issue the legal issue there is whether or not what how do we analyze that under the i trust lawyers is this some type of affirmative conduct that doesn't fall under drink or link line or the duty to deal cases  judge justice courses in nobel answered that issue that if it's within the rubric of refusal to cooperate then it comes under the duty to deal cases that subject to those tests in that case the claim in the white rapper incident the claim was  not that we have set out intentionally to injure their reputation by injuring our own reputation by sending out a product that had the facts in it their argument is we refused to cooperate by taking the product back from them from the suit our point was that's they refused to cooperate it subject to the same test and we should have been able to have the jury instructed number one that we had no general duty to cooperate and that was in the instruction that e property to the product when it was delivered to them and if they had an issue with it based on that inspection they were to inform us under the appropriate procedure gotten happened and but i mean i think that's a side issue we certainly i feel quite chastised that your honor thinks that we're trying to misrepresent something we're not we're actually trying to get to the merits of this at this way when i read the factual narrative in the blue brief and then i went with the factual narrative in the red brief these were is i don't think there was any merit misrepresentation of the factual record i think one aspect of this that we would certainly like to convey is that there was a big dispute as to whether or not there was a breach contract or the implied covenant here and that's why it is invalid and i trust a claim which allowed a whole bunch of arguments to be made you know trust side about monopoly monopolistic intent evidence that was introduced evidence  profitability all of those types of things prejudiced the jury it would not have gone in a pure contract or an implied covenant case and there was a dispute here most of the damages here were driven by this period of time between the two written contracts and that's when big orders came in and that was the period of time when the argument was that we were creating a contract by our conduct that that was a fiercely contested issue but the case ended up being tried rhetorically as in the end i trust case there was evidence brought in about how big we are monopolist evidence of our profitability which under florida law which is what governs here for the state law claim one to come in on a contract claim on a covenant claim and so again i would like i mean i think for us an invalid and i trust plain is really the heart of the roadblocks is injury to competition if this if this was a if there was a duty to deal case a duty to deal here you would think there would be injury to competition as a result of the conduct and size theory that judge trust plaintiff must prove that there is injury to the market as a whole to competition in general not just to their own business so there was some evidence wasn't there before the jury and the jury got to make that call i think the are appealing that and the standard is they know that though and it's an issue as to which we have a supreme court decision in the last several months the american express case in that case we've got to submit our one page twenty j letter but that case is very important to understanding why there was no injury to competition here but still need to have the benefit of that case and we think that the way that issue was dealt with was mistaken a restriction a failure to fill orders does not translate especially on the part of a small player in the market does not translate to restricted market he acknowledged there were new entrants but he said he hypothesized that if swisher had fulfilled with t s i single market player put in the market as a whole could have been higher and he says he shifted the burden  us to just prove that to you prove there was no impact on the market as a whole many found that we had met that burden that was wrong it was wrong at several different levels and it's wrong in conflict with supreme court precedent injury in a situation where you have a growing market and you need to prove a restriction about plot and the supreme court basically said that a claim of restricted output in a growing market can't be based on proving restricted output in a growing market was quote a counterfactual proposition unquote that is quote difficult to prove in the best of circumstances that's a burden that the plaintiff bears not the defendant can't be shifted to the defendant m x was a case also with a growing market thirty percent over five years in a max and in that case the plate of the government came forward and said we bet our burden of proving injury to competition  because the defendant american express raised price there's some evidence that american express raised price and the supreme court said no you haven't made your burden of proof you've got no evidence that it's higher price was higher than anyone else's had two markets where they said we could have a monopoly never claimed we could have a monopoly in the national market they calculated injury and damages solely on national basis those two markets that they alleged we had a monopoly and covered thirteen states there were thirty seven states in which it was there was no rational basis for a finding of monopolization they had a national market number same was true on account we do have a cross appeal issue on that there were five markets in which the out of twelve in which they claimed that there was attempted monopolization and so between the two when the five that was seven out of twelve markets they didn't claim that there was an attempt or  monopolization in the entire country and what judge selma said was well maybe they tried to prove on a regional basis that you were a monopolist and they didn't succeed because they couldn't prove causal injury  but we can assume they found a national market and that corresponded with the national damage calculation of the attempt to claim the problem was we had asked for a a question in the jury for asking the jury which relevant market they'd found if we had gotten that it was the night if we'd gotten that we know the answer to this question judge selma's saving of the attempt to claim was based on the assumption that the jury would've had a national market for a temper passes at a regional market for our actual monopolization purposes they would never presented that way they're inconsistent market determinations they didn't argue that didn't argue for an inconsistent part of the terminations and that would have been clarified if our request for the jury to tell us what market it found was granted but i go back to m x my last few seconds this is not a case restricted output injury due to competition swisher reduced prices never year prices were twenty percent lower but again and of this time period two thousand and eleven to two thousand and fourteen output skyrocketed there were new entrants there was low cost competition major competitors all of them could meet unmet demand from if there was a young man demand as a result of a small reduction relative to the size of the market in orders that were fulfilled and so we would urge this court to look at the merits of the and i trust issues this was not an antitrust case and again i apologize judge the better word well we didn't certainly didn't intend to mislead either and it's a very complex case and there are very a great deal of different ways of looking at it and had a limited number of pages to put forward the case i think you'd rather thin know as i certainly don't want to be perceived as piling on at this point this wishers council just said that we had not advocated a national market for the attempted monopoly claim that's not true  direct the court to where i advocated for that in closing this is in the r t r at page eighteen where our expert advocated for it and his testimony is that our your thirty six if there's any concern about the mismatch refer you to the portion of our yellow brief that addresses that second on the harm to competition swisher points out that brooke group says that it can be difficult to prove harm to competition and expanding market that's a far different proposition and then where a jury is properly instructed on the issue here's evidence for eight days and if you find time to competition that jury's verdict must be reversed it also doesn't address the other harms to competition that the jury was charged with having do with price and quality here a low price high quality alternative to swisher was removed from the market entirely and consumers were left in pain to for ninety nine study three hundred eighty nine i want to close by saying i think i don't quarrel with the notion that if this case had been presented by the defense as a refusal to deal case from the very beginning that that would have presented an interesting issue i think we probably still would have disputed that but the fact of the matter is that swisher is trial counsel did have a theory of the case coming in here it's there in the case coming in we can see from the opening the closing was that we didn't do any of this stuff where we're here is no transit or is it fault for its own sake if it had come in and said yeah we did all this stuff but we can't be liable  antitrust laws then what is it doing it's admitting at least ten million dollars in liability on the contract plans juries don't really follow i'm sorry court courts you know the entertainment arguments in the alternative but when your defense before a jury trial