[00:00:00] Speaker 03:
Thank you and we'll turn to our last oral argument of the day.

[00:00:06] Speaker 03:
In that case is 24-4039 North Brevard County Hospital District versus C.R.

[00:00:14] Speaker 03:
Bard.

[00:00:17] Speaker 02:
Good morning, Your Honors.

[00:00:19] Speaker 02:
If it please the Court, I'm Stephen Barry representing Appellant

[00:00:24] Speaker 02:
Plaintiff, North Brevard County Hospital District, doing business as Parrish Medical Center.

[00:00:31] Speaker 02:
Parrish would show the court as follows.

[00:00:34] Speaker 02:
This court has jurisdiction to review the tying final judgment on the merits merged with class interlocutory findings prior to the, that is, now before the court.

[00:00:48] Speaker 02:
Second, the district court erred in dismissing the tying claim by misinterpreting

[00:00:53] Speaker 02:
Dictum and Abram and Sports Racing.

[00:00:56] Speaker 02:
This court has never created an enforcement gap by holding that purchasers suffering antitrust price injury by purchasing the monopolized tied product.

[00:01:08] Speaker 02:
Here PICS lacks standing to assert a tying claim.

[00:01:13] Speaker 02:
Third, as to the jurisdictionally merged class interlocutory findings.

[00:01:19] Speaker 02:
the district court pervasively erred by failing to follow the Supreme Court and this court's unequivocal and well-established direction in Tyson's Foods, Black versus Occidental Petroleum, NRA, Urethane Antitrust, and Monaco.

[00:01:37] Speaker 02:
It's a trifecta plus one of error, we believe, respectfully submit.

[00:01:42] Speaker 02:
I note here that

[00:01:47] Speaker 02:
We contend that its typicality, adequacy of representation, and predominance findings should be reversed.

[00:01:55] Speaker 02:
And since the district court accepted Parrish's other prerequisite showings to expedite resolution of this matter first filed five years ago in 2020 with a total statute of limitations period now at nine years, Parrish respectfully petitions that a mandate issue

[00:02:17] Speaker 02:
directing the district court to certify damage in adjunctive classes so the parties may proceed to trial on the merits.

[00:02:26] Speaker 02:
Jurisdiction.

[00:02:28] Speaker 02:
This court has jurisdiction.

[00:02:30] Speaker 03:
Excuse me.

[00:02:31] Speaker 03:
Let me try to understand your claims a little bit.

[00:02:36] Speaker 03:
Is there any difference in proof between your tying claim and your monopolization claim?

[00:02:42] Speaker 03:
Is it your tying claim that because of the tied product, the defendant

[00:02:47] Speaker 03:
has monopoly power and that's causing the price of the catheters you want to be raised.

[00:02:57] Speaker 03:
Yes.

[00:02:57] Speaker 03:
How is that different from your monopoly claim?

[00:03:00] Speaker 03:
It isn't.

[00:03:01] Speaker 03:
It isn't.

[00:03:02] Speaker 03:
So what's so terrible about saying you shouldn't be the one bringing the tying claim?

[00:03:10] Speaker 03:
Well, it really amounts to a monopoly claim.

[00:03:14] Speaker 03:
It's kind of what

[00:03:16] Speaker 03:
I think our opinion in sports, whatever, was saying that they're not the best person to bring the tying claim, but they have a monopoly claim.

[00:03:28] Speaker 03:
Wasn't that the same situation there?

[00:03:30] Speaker 02:
Well, you know, I would disagree.

[00:03:31] Speaker 02:
The talisman and antitrust jurors' canon across the board is if a party suffers direct antitrust price injury, it has standing.

[00:03:43] Speaker 02:
full stop.

[00:03:44] Speaker 02:
There's no enforcement gap that the court is manufacturing here by relying on dictum.

[00:03:51] Speaker 03:
This court has... It's not an enforcement gap is what you're saying because you can proceed with your monopolization.

[00:03:56] Speaker 02:
Well, it's a tying enforcement gap.

[00:03:59] Speaker 03:
Okay.

[00:04:00] Speaker 02:
I mean, you know, it shouldn't depend on whether monopolization is on the four corners the same as time.

[00:04:08] Speaker 03:
But it does mean that's really the essence

[00:04:11] Speaker 03:
of your claim is the monopolization aspect.

[00:04:16] Speaker 03:
You're not buying the tying product.

[00:04:20] Speaker 03:
I'm going to get that wrong in every question I ask.

[00:04:23] Speaker 03:
You don't want the tying product.

[00:04:26] Speaker 03:
And usually for a tying claim, and virtually every case that has a tying claim apparently has this situation, you don't want to spend the extra, you don't want to

[00:04:37] Speaker 03:
spend too much money on the Tide product, that should be competitive.

[00:04:43] Speaker 03:
But to get the Tide product, you have to buy the Tide product.

[00:04:46] Speaker 03:
That's not precisely what your problem is.

[00:04:50] Speaker 03:
Your problem is that because other people are stuck that way, it gives Monopoly State and Monopoly Power to Bard.

[00:04:58] Speaker 03:
And that's the gist of your claim, the Monopoly Power.

[00:05:02] Speaker 02:
Yes.

[00:05:03] Speaker 02:
And in the relevant product market for PICS, there's Monopoly Power.

[00:05:07] Speaker 02:
And it's caused by the tie.

[00:05:09] Speaker 02:
And that sounds both in tying and monopolization.

[00:05:13] Speaker 02:
And for the court to find that tying is off the board, we believe is inappropriate.

[00:05:21] Speaker 02:
This court has never held that purchasers suffering antitrust price injury by purchasing a monopolized tied product hear picks

[00:05:32] Speaker 02:
lack standing to assert a tie and claim.

[00:05:35] Speaker 02:
The district court did say, by the way, I would decide this differently if I wasn't bound by sports racing and Abram dictum, which we consider as dictum.

[00:05:47] Speaker 02:
He didn't.

[00:05:48] Speaker 01:
Yeah, but counsel, the Abraham decision was looking at the direct purchasing rule based upon the definition of tying arrangements that came from the Supreme Court.

[00:06:00] Speaker 01:
So whether ultimately how the Supreme Court has defined this sort of tying arrangement as dictum, but that's binding on us.

[00:06:08] Speaker 01:
And I mean, couldn't a reasonable argument be made that Abraham, even if it, in applying that dictum, did establish this direct purchasing rule that, and you said a moment ago,

[00:06:18] Speaker 01:
the court or anyone who suffered antitrust injury has standing full stop.

[00:06:23] Speaker 01:
But I mean, I don't think it's that clear.

[00:06:25] Speaker 01:
I mean, what we're talking about here is how to apply Abraham.

[00:06:29] Speaker 01:
And would you acknowledge at least the dictum doesn't go your way?

[00:06:33] Speaker 02:
Well, Abraham doesn't get the district court where it wanted to be because it did not address the question of whether the purchaser of the Tide product has standing.

[00:06:46] Speaker 02:
The plaintiff hadn't even bought the relevant tie product in Abraham.

[00:06:50] Speaker 01:
So it can't be quoted as part of the holding.

[00:06:53] Speaker 01:
But it expressed its intention and its desire to do so, which is absent here.

[00:06:57] Speaker 01:
Isn't that the gap?

[00:06:59] Speaker 01:
In Abraham, the plaintiff said, well, we suffered injury because we want to purchase this tie product, but based upon the antitrust injuries we've been suffering, we would have to pay higher prices, therefore we have standing.

[00:07:12] Speaker 01:
Here, as I understand it,

[00:07:14] Speaker 01:
Parrish is saying, well, we don't want to buy the tie product.

[00:07:17] Speaker 01:
However, our injury is that the price of the product we do want to purchase has been elevated.

[00:07:21] Speaker 01:
So isn't this case easily distinguishable from Abraham in that regard?

[00:07:25] Speaker 02:
Yes, it is.

[00:07:27] Speaker 01:
Therefore, this talk... But in a way that's not helpful for you, right?

[00:07:30] Speaker 02:
Well, I think it is helpful that therefore this case should go forward.

[00:07:40] Speaker 02:
And you can't say that there's stare decisis on Abraham on this point because it wasn't part of the holding.

[00:07:47] Speaker 02:
And it's basically the court, enough.

[00:07:52] Speaker 03:
Well, let me, there are a lot of things in this case.

[00:07:59] Speaker 03:
You said that you should prevail in the tying claim because if you have an antitrust injury,

[00:08:06] Speaker 03:
It can proceed.

[00:08:07] Speaker 03:
But antitrust injury, as I understand it, maybe I got it wrong, doesn't mean that you're injured by antitrust activity.

[00:08:16] Speaker 03:
There's more to it than that.

[00:08:17] Speaker 03:
For example, when the wholesaler is the one directly damaged by the antitrust agreement,

[00:08:28] Speaker 03:
it's the wholesaler who can bring the claim, not the retailers who suffer injury, even from the antitrust.

[00:08:35] Speaker 02:
That's all my brick.

[00:08:36] Speaker 03:
Yes.

[00:08:36] Speaker 03:
So there's this notion that you don't have an antitrust injury just because you're injured by antitrust activity.

[00:08:46] Speaker 03:
It's more than that.

[00:08:47] Speaker 03:
And in some sense, at least, you don't have an antitrust injury unless you're a good person or the best person to bring the claim.

[00:08:56] Speaker 03:
And here,

[00:08:58] Speaker 03:
I think the district court understood that to mean that people who buy both the tie product and the tying product are the best people to bring a tying claim.

[00:09:11] Speaker 03:
And that's really not so bad for you because you still have the exact same claim you're going to make, but you just do it under section two instead of section one.

[00:09:19] Speaker 03:
What's wrong with that?

[00:09:21] Speaker 02:
Well, what is wrong with that is that the court is basically making

[00:09:27] Speaker 02:
pouring out of court in a time context, a party that has been injured by direct antitrust price injury due to monopoly power conferred by the tie.

[00:09:41] Speaker 02:
You're out of court and there's no policy reason why that should be.

[00:09:49] Speaker 02:
Just referring to some loose language in dictum that there are two categories of claimants is

[00:09:55] Speaker 02:
It shouldn't end the analysis.

[00:09:57] Speaker 03:
One difference between you and the people who buy both the tine and tine product is you could lose on your tine claim if you can't show monopoly power.

[00:10:08] Speaker 03:
And the others don't have to prove monopoly power to prevail on their tine claim.

[00:10:13] Speaker 03:
Isn't that correct?

[00:10:13] Speaker 02:
No, you have to show that the tine confers monopoly power.

[00:10:20] Speaker 02:
You have monopoly power in the tine product.

[00:10:22] Speaker 03:
You have to do that.

[00:10:24] Speaker 03:
Does a purchaser of the tying and tie product?

[00:10:29] Speaker 02:
Yes.

[00:10:30] Speaker 03:
Doesn't that person have a claim, a tying claim, without showing that this tying practice of the defendant actually gives the tying

[00:10:42] Speaker 03:
defendant monopoly power.

[00:10:45] Speaker 02:
I don't think that's the law.

[00:10:47] Speaker 02:
I think that you have to have monopoly power in the product that's being sued upon, whether it's the tying or tied product.

[00:10:56] Speaker 02:
And if there is monopoly power, there's direct anti-price injury.

[00:11:01] Speaker 02:
You'd have to show to get to injury that there was monopoly power or market power or whatever you want to call it.

[00:11:08] Speaker 02:
So I would respectfully disagree, Your Honor.

[00:11:11] Speaker 01:
Counsel, can I ask you about your Section 2 claim?

[00:11:15] Speaker 01:
Help me understand your argument as to why Baker and Anderson Living Trust don't resolve this question.

[00:11:22] Speaker 02:
Yes, because Anderson Living Trust is distinguishable on three important grounds.

[00:11:30] Speaker 02:
First, Anderson did not address the situations here where the interlocutory rulings are merged with a final judgment on a merits claim here.

[00:11:40] Speaker 02:
Second, unlike Anderson, Parrish Hospital is not seeking to end run rule 23F.

[00:11:47] Speaker 02:
In fact, Parrish made a timely petition under 23F.

[00:11:54] Speaker 03:
So didn't that happen in the Microsoft case also?

[00:11:59] Speaker 03:
Hadn't they pursued 23F and were rejected?

[00:12:03] Speaker 03:
So then they manufactured jurisdiction.

[00:12:07] Speaker 02:
Okay, well.

[00:12:09] Speaker 02:
Yes, they were manufacturing just jurisdiction, even though they had filed the, been denied on 23F, they were in running it.

[00:12:16] Speaker 02:
They had two bites of the apple, and the Supreme Court said, no, that's, I like to reserve three minutes of my time.

[00:12:22] Speaker 03:
You're gonna have time to make your argument, okay?

[00:12:25] Speaker 03:
Okay.

[00:12:28] Speaker 03:
But I thought you said you pursued 23F in this case.

[00:12:32] Speaker 03:
You were denied.

[00:12:33] Speaker 03:
What?

[00:12:34] Speaker 03:
Yes, so then you manufactured jurisdiction just like they did in the Microsoft case.

[00:12:39] Speaker 02:
Under the merger rule, we're not manufacturing jurisdiction.

[00:12:43] Speaker 02:
The interlocutory rules merge with the merits finding, final judgment on the time.

[00:12:49] Speaker 02:
If I could address that for a moment.

[00:12:55] Speaker 02:
This merger distinction with Anderson is particularly salient.

[00:13:01] Speaker 02:
Under well-settled appellate tenants, litigants may in the course of appealing a final decision, as here,

[00:13:07] Speaker 02:
challenge earlier interlocutory rulings.

[00:13:11] Speaker 02:
The merger foundation of this court's jurisdiction is seminal Supreme Court precedent as far back as 1891 in McLeish, 141 U.S.

[00:13:22] Speaker 02:
665.

[00:13:23] Speaker 02:
As the court put it, quote, from the very foundation of our judicial system, the object and policy of acts of Congress have been to save the expense and delays of repeated appeals in the same suit.

[00:13:35] Speaker 02:
and to have the whole matter in controversy decided in a single appeal.

[00:13:40] Speaker 02:
That's what we want here.

[00:13:42] Speaker 02:
Indeed, the Supreme Court in Baker cited McLeish in High Berber for that proposition.

[00:13:51] Speaker 02:
So it could be argued that that case support our distinction here that Livingston

[00:13:56] Speaker 02:
trust does not apply, nor does Microsoft Baker to deny interlocutory consideration under the merger rule of class rulings.

[00:14:06] Speaker 02:
In fact, we believe this court more likely or more beneficially looked to its precedent in Crowley Petroleum, which was authored by Your Honor Judge Hart, and Schmurrier, in which Judge Hart was on the panel in that case.

[00:14:21] Speaker 02:
In Crowley Petroleum, Your Honor Judge Hart

[00:14:26] Speaker 02:
found for the court an order.

[00:14:28] Speaker 03:
You're losing the other two judges every time you cite me, so be careful about that.

[00:14:34] Speaker 02:
Yes, Your Honor, I will be very careful about that.

[00:14:39] Speaker 02:
Where the court found that an order voluntarily dismissing a class action was a final decision which fully resolved the matter before the court and was appealable.

[00:14:51] Speaker 02:
And that was in 2021, some years after Anderson Living Trust.

[00:14:57] Speaker 02:
In Schmier, the court found that dismissal of class claims with prejudice creates finality if there were prior claims adversely dismissed with prejudice.

[00:15:11] Speaker 02:
That's what's here.

[00:15:12] Speaker 02:
Prior claims adversely dismissed with prejudice, then there's finality and you can deal with the class,

[00:15:21] Speaker 03:
You're going to be able to address all of them, but not with unlimited time.

[00:15:26] Speaker 03:
So why don't you turn to one of your other issues that you don't feel you've got a chance to argue.

[00:15:32] Speaker 02:
All right, the class issues.

[00:15:34] Speaker 02:
Should the court assert jurisdiction?

[00:15:37] Speaker 02:
That's it then?

[00:15:39] Speaker 03:
You're out of time, but go ahead and briefly address the class issues.

[00:15:44] Speaker 02:
I will be brief.

[00:15:48] Speaker 03:
Our argument is to help us, and if we think we're still being helped, you're going to be able to talk about it.

[00:15:53] Speaker 02:
Well, I'm glad.

[00:15:54] Speaker 02:
Hopefully, I am helping, Your Honor.

[00:15:57] Speaker 02:
Under well-established Supreme Court President Tyson Foods, recently relied upon in this circuit in Black versus Occidental, on which Judge, I'm sorry.

[00:16:15] Speaker 02:
Committed pervasive class error

[00:16:17] Speaker 02:
across its typicality, adequacy of representation, and predominance findings by ignoring or discrediting plaintiff expert Dr. Miravette and taking issues of the relative persuasiveness of expert class testimony on common impact, etc.

[00:16:35] Speaker 02:
from the jury.

[00:16:37] Speaker 02:
Below, no opinions

[00:16:41] Speaker 02:
I want to emphasize here, below the court did not find under Daubert that the opinions of Judge Dr. Miravette were unreliable or inadmissible.

[00:16:51] Speaker 02:
So there's no finding in that regard.

[00:16:54] Speaker 02:
As the Supreme Court puts it in Tyson's food, quote, reasonable minds may differ as to the correctness of an expert opinion.

[00:17:02] Speaker 02:
Resolving that question, however, is the near exclusive province of the jury, not the chief judge below here.

[00:17:09] Speaker 02:
The court in black versus occidental petroleum follows Tyson's in the class context.

[00:17:18] Speaker 02:
There the court rejected the contention that plaintiff's class predominance methodology was incapable of showing class-wide monarchic power.

[00:17:27] Speaker 02:
The panel found that this contention, quote,

[00:17:30] Speaker 02:
should be properly addressed at trial in a ruling or on a summary judgment of motion.

[00:17:35] Speaker 02:
Quote, similarly, a challenge to the persuasiveness of plaintiff's methodology for determining market power is, in general, a matter for the jury.

[00:17:47] Speaker 02:
The district court can consider.

[00:17:50] Speaker 02:
Just wrap it up now.

[00:17:51] Speaker 02:
Yes, sir.

[00:17:54] Speaker 02:
In our brief, we go over how the court

[00:17:59] Speaker 02:
did not follow Tyson's, and therefore should be reversed on adequacy representation, typicality, and predominance.

[00:18:07] Speaker 02:
Thank you, Your Honor, for your patience.

[00:18:11] Speaker 02:
Are we still getting paid double for coming?

[00:18:14] Speaker 02:
I think it's 30 degrees.

[00:18:16] Speaker 02:
We have a ruling, don't we, on that?

[00:18:20] Speaker 00:
It's got to be below zero for us to get paid double.

[00:18:23] Speaker 00:
Mr. Quinn?

[00:18:30] Speaker 00:
Good morning and may it please the court.

[00:18:32] Speaker 00:
My name is Brian Quinn.

[00:18:34] Speaker 00:
I represent CRBAR and BARD access systems in this case.

[00:18:38] Speaker 00:
I'm joined at council tables by my colleague Colleen Powers.

[00:18:42] Speaker 00:
Supreme court intent circuit law controls each of the three questions that are relevant in this appeal.

[00:18:49] Speaker 00:
First, can Parrish establish antitrust standing to bring a tying claim when it never purchased and had no interest in purchasing the tying product, unlike thousands of other hospitals?

[00:19:01] Speaker 00:
The answer is no.

[00:19:03] Speaker 00:
Second, can Parrish use a voluntary dismissal tactic to engineer appellate and subject matter jurisdiction over the adverse class certification decision on its separate monopolization claim?

[00:19:16] Speaker 00:
The answer is no.

[00:19:18] Speaker 00:
Finally, even if Parrish could use that tactic to obtain jurisdiction, is there any reason to disturb the district court's class certification decision?

[00:19:27] Speaker 00:
The answer is no.

[00:19:30] Speaker 00:
Now your honor asked

[00:19:31] Speaker 00:
earlier, why isn't this case exactly like sports racing?

[00:19:35] Speaker 00:
The answer is that this case is exactly like sports racing.

[00:19:39] Speaker 00:
The parallels between sports racing in this case are obvious.

[00:19:44] Speaker 00:
As here, the plaintiffs in sports racing brought tying claims and related monopolization claims.

[00:19:51] Speaker 00:
As here, one of the plaintiffs in sports racing only bought the so-called tied product.

[00:19:56] Speaker 00:
In that case, the tied product was cars and parts

[00:19:59] Speaker 00:
In this case, the tied product is standalone picks.

[00:20:02] Speaker 00:
And as here, one of the parties in sports racing brought a claim on the basis of the defendant's alleged monopolization of the market for the tied product.

[00:20:11] Speaker 00:
Again, cars and parts in that case.

[00:20:15] Speaker 00:
The district court's decision here followed the contours of sports racing as it applies to purchaser antitrust standing exactly.

[00:20:23] Speaker 00:
No antitrust standing to bring a tying claim when you only purchase the tied product.

[00:20:29] Speaker 00:
Yes, antitrust standing to bring a monopolization claim when you purchase only the tied products and claim it overcharge.

[00:20:36] Speaker 03:
So explain that.

[00:20:37] Speaker 00:
They're injured.

[00:20:39] Speaker 03:
They state their argument that they are injured by the fact that this tying is going on.

[00:20:50] Speaker 03:
It's kind of indirect.

[00:20:53] Speaker 03:
There are other people who might be better situated, but why

[00:20:57] Speaker 03:
There's not the complication of measuring damages by allowing them to proceed.

[00:21:03] Speaker 03:
Why is that, why is what would clearly article three standing, why isn't that enough to bring in any trust claim?

[00:21:11] Speaker 03:
Explain the rationale behind that.

[00:21:15] Speaker 00:
It's not clear.

[00:21:16] Speaker 00:
I think sports racing does a better job than I even could.

[00:21:19] Speaker 00:
Well, it just, it doesn't, I mean, we may be bound by what it said.

[00:21:24] Speaker 03:
That was a fairly brief footnote

[00:21:27] Speaker 00:
Footnote 15, it was.

[00:21:28] Speaker 00:
The rationale of that is that for Clayton Act claims, private antitrust claims, we have to pick the right plaintiff.

[00:21:36] Speaker 00:
Why?

[00:21:37] Speaker 00:
Because the Supreme Court says in Associated General Contractors that it's a policy matter.

[00:21:42] Speaker 00:
It's just not the case that everybody conceivably injured by an antitrust violation can sue.

[00:21:47] Speaker 03:
I may be getting my cases mixed up, but I thought

[00:21:51] Speaker 03:
The big problem there was duplication of damages because you get different people in the purchasing chain and let the person who, the wholesaler, I don't know if that was the situation there, they can get all the damages.

[00:22:06] Speaker 03:
Yes, the purchasers from the wholesalers are hurt.

[00:22:12] Speaker 03:
What's the negative result of allowing the sort of claim in this case?

[00:22:19] Speaker 03:
What problem arises because they're not the best plaintiff?

[00:22:25] Speaker 00:
I think the case you were thinking of, Your Honor, was Illinois brick.

[00:22:29] Speaker 00:
Associated General Contractors is the case where the Supreme Court says that even among direct purchasers, the people who are ostensibly proper plaintiffs to sue, you have to assess directness among them.

[00:22:41] Speaker 00:
We don't want folks with an indirect injury bringing antitrust claims when the people who are best to bring antitrust claims are those who are directly injured.

[00:22:51] Speaker 00:
They have the most interests.

[00:22:52] Speaker 00:
They're going to detect the violation a lot more easily than someone who's indirect.

[00:22:57] Speaker 00:
They've got the most skin in the game in terms of recovery, a possibility for recovery.

[00:23:01] Speaker 00:
And so as a policy matter, we don't want to go beyond the first step.

[00:23:05] Speaker 00:
We want to focus on the victim who's injured at the first step.

[00:23:10] Speaker 03:
Supreme Court talk about the negative aspects, maybe these other people are better, but what's wrong with bringing, having the case brought by someone who has an indirect injury?

[00:23:23] Speaker 00:
I think it was a proximate cause decision, your honor.

[00:23:26] Speaker 00:
And so it was really a policy decision about, okay, at some point in time, you just get too far from the locus of the harm, from the direct victim, such that we're not going to allow those people to bring antitrust claims under the Clayton Act.

[00:23:39] Speaker 00:
They may have a cause of action under state law that provides for indirect purchaser claims.

[00:23:44] Speaker 00:
They may have a cause of action elsewhere, but for purposes of federal antitrust policy, we're gonna focus on the direct victim and exclude indirect victims from the ambit of the remedy.

[00:23:55] Speaker 03:
And they really don't say what the downside is.

[00:23:57] Speaker 03:
I think the downside... They just say these guys have more skin in the game, they know better, so on, fine, but they don't bring the claims, so an indirect

[00:24:05] Speaker 03:
the injured person brings it, but that's a concept that I'm not familiar with outside of antitrust law, that you can't bring a claim unless you're the best person to bring the claim.

[00:24:16] Speaker 03:
They don't give...

[00:24:19] Speaker 03:
They don't mention any negative consequences.

[00:24:22] Speaker 03:
Are they worried about someone with an indirect claim, I don't know, filing a suit and binding the others in some way so the people who are directly injured can't proceed?

[00:24:32] Speaker 03:
Or maybe the people who are directly, quote, injured actually like the situation so they don't bring the claim?

[00:24:38] Speaker 03:
Nothing like that in their opinion.

[00:24:40] Speaker 00:
I think there is a portion of the opinion where the Supreme Court in HEC, Associate General Contractor, says the fact that we don't have a direct plaintiff here is indicative of the fact that maybe there's no antitrust violation at all.

[00:24:54] Speaker 00:
It's like we have a union, in that case, a union that was suing to recover some kind of damages.

[00:25:01] Speaker 00:
The Supreme Court says there are more direct victims in that case, entities that are letting construction contracts and are the direct victims of the alleged coercion.

[00:25:10] Speaker 00:
It's like the fact that none of them have sued, like in this case, none of the thousands of hospitals that purchased the time product have sued, indicates that there's no violation to deal with in the first place.

[00:25:21] Speaker 00:
And we don't want to allow that kind of attenuated and contrived claims in.

[00:25:26] Speaker 00:
It's kind of like if the direct people aren't complaining, then why?

[00:25:32] Speaker 00:
I think that's the crux of the argument.

[00:25:33] Speaker 00:
I think so.

[00:25:35] Speaker 00:
And that was really the basis for sports racing.

[00:25:38] Speaker 00:
The court said,

[00:25:39] Speaker 00:
Look, I've identified an entire cohort of people who are the direct victims of the alleged tying policy.

[00:25:46] Speaker 00:
They're the right ones to bring the claim.

[00:25:48] Speaker 00:
You who only purchase the tied product, you're never subject to the coercion, and you only suffer an injury to the extent that these earlier people suffer an injury.

[00:25:58] Speaker 00:
And that's true of Parrish as well.

[00:26:00] Speaker 00:
Parrish never suffers an injury unless and until thousands of bundled purchasers actually suffer an injury.

[00:26:07] Speaker 01:
Council, I heard Parrish's argument to be that, well, Abraham in sports racing largely is either dicta or relying upon dicta, but why should we read sports racing so firmly to be sort of the exclusive list of who can have standing to bring the tying claim?

[00:26:25] Speaker 01:
In other words, it says there are two types of parties.

[00:26:27] Speaker 01:
It doesn't say there are only two types of parties, so help me understand that.

[00:26:31] Speaker 00:
Sure.

[00:26:31] Speaker 00:
So the entire decision in sports racing on purchase or antitrust tying standing,

[00:26:36] Speaker 00:
hinges on the notion that there's no other purchaser who could bring that tying claim.

[00:26:40] Speaker 00:
The court says of Freeman, the party who actually purchased the bundle in that case, it's like, even though you purchased the tied product indirectly, you purchased it through another party, we're gonna carve out an exception to the Illinois brick rule on indirect purchasers because we think that you're the right person to bring the claim.

[00:26:59] Speaker 00:
You are the right purchaser plaintiff to bring a tying claim.

[00:27:02] Speaker 00:
It says of SRS, the party that only purchased the tied product,

[00:27:06] Speaker 00:
You are not the right person to bring the claim.

[00:27:08] Speaker 00:
You're not tied.

[00:27:10] Speaker 00:
You haven't even suffered any antitrust injury that we can tell.

[00:27:14] Speaker 00:
And there's another direct victim standing right here.

[00:27:17] Speaker 00:
And so the entire decision on doing something, carving out an exception to the Illinois brick is no mean thing.

[00:27:23] Speaker 00:
The entire decision to do that hinges on the court's conclusion that the tied product purchaser's only was not the proper plaintiff to bring a tying claim.

[00:27:33] Speaker 00:
Now when it came to monopolization, the sports racing court said,

[00:27:36] Speaker 00:
This is an analytically distinct claim.

[00:27:39] Speaker 00:
There are different elements that you have to prove for this claim.

[00:27:42] Speaker 00:
The theory of injury is different.

[00:27:44] Speaker 00:
The theory of injury in a monopoly maintenance claim like Parrish's is that the monopolist is already charging super competitive prices in the market and then does something exclusionary.

[00:27:53] Speaker 00:
At that minute, everybody who purchases the product is injured.

[00:27:57] Speaker 00:
And so purchasers of the bundle and a purchaser like Parrish that only purchases the tied product is injured in that moment in time.

[00:28:04] Speaker 00:
And so it really maps on to this case quite well.

[00:28:07] Speaker 00:
It's kind of the exact same scenario.

[00:28:10] Speaker 00:
I would like to take a chance to respond to some of the jurisdictional arguments that Parrish made on Anderson Living Trust and on Microsoft V Baker.

[00:28:18] Speaker 00:
I think that argument boils down to this merger argument that Parrish is making.

[00:28:24] Speaker 00:
As I understand it, Parrish says that the order dismissing its separate tying claim merges into the judgment

[00:28:32] Speaker 00:
and somehow makes the interlocutory order on its separate class certification claim appealable under Anderson Living Trust and under Baker.

[00:28:40] Speaker 00:
And I just don't think that's right.

[00:28:41] Speaker 00:
Anderson Living Trust itself addressed a merger issue.

[00:28:45] Speaker 00:
The court said of the Anderson Living Trust, it settles its claim and then it voluntarily dismisses the claim.

[00:28:52] Speaker 00:
In that opinion, the court says that class certification order, that adverse class certification order, doesn't merge into the final judgment

[00:29:00] Speaker 00:
because the Anderson Living Trust disassociated itself from the class.

[00:29:04] Speaker 00:
By dismissing its individual residual claim, it divorced itself from the interest of the class, such that the adverse class certification order never merges into the final judgment and doesn't become appealable.

[00:29:17] Speaker 00:
I think that's the answer here.

[00:29:19] Speaker 00:
Parrish dismissed its residual monopolization claim.

[00:29:23] Speaker 00:
It dismissed it with prejudice.

[00:29:24] Speaker 00:
It said, we let it go.

[00:29:26] Speaker 00:
That claim is now gone forever.

[00:29:28] Speaker 00:
it divorced itself from the class such that the adverse class certification order doesn't merge into the final judgment and doesn't become appealable.

[00:29:38] Speaker 00:
You know, kind of an adverse finding, you can imagine in Microsoft B. Baker, the same issue would have come up.

[00:29:44] Speaker 00:
The Supreme Court would have held in that case that the issue was not appealable.

[00:29:48] Speaker 00:
Well, on a pernicious logic, that class certification order would have merged into the final judgment and been appealable.

[00:29:56] Speaker 00:
And so I don't understand the distinction that Parrish is trying to make there, and I don't think it's cognizable under Anderson Living Trust.

[00:30:02] Speaker 01:
Council, I think it was either in your motion or perhaps your response, though, in applying Microsoft v. Baker.

[00:30:10] Speaker 01:
You also argued that Parrish lacks Article III standing, but I read Microsoft v. Baker to be a 1291 finality decision.

[00:30:19] Speaker 01:
So why do they lack Article III standing as well?

[00:30:23] Speaker 00:
So you're absolutely right, Your Honor.

[00:30:25] Speaker 00:
Microsofty Baker was a decision that was premised on appellate standing rather than Article 3 standing.

[00:30:30] Speaker 00:
Three justices wrote separately to indicate that they believe that the plaintiff in that case lacked Article 3 standing.

[00:30:37] Speaker 00:
And so I still think that in a case like this where the plaintiff made no reservation of rights below, Parrish made no reservation of rights on its residual claim, unlike the plaintiffs in Microsoft and Anderson Living Trust, I believe, that that plaintiff lacks Article 3 standing on appeal.

[00:30:53] Speaker 00:
It dismissed its claim with prejudice.

[00:30:55] Speaker 00:
And the question for Parrish now is, even if it gets a favorable result on appeal, how does it revive that claim at the district court stage, having dismissed it with prejudice?

[00:31:06] Speaker 00:
That claim is gone forever.

[00:31:08] Speaker 03:
Well, the dismissal is against just the one party who wants to be the class representative.

[00:31:14] Speaker 03:
Right.

[00:31:15] Speaker 03:
The argument is that it can be continued as a class action.

[00:31:20] Speaker 03:
Which has happened, I think it was a case involving prisoners.

[00:31:24] Speaker 03:
Had class action and the reported representative was released from prison, but the case could continue with the other class members.

[00:31:35] Speaker 03:
I assume that that's what they're talking about.

[00:31:37] Speaker 00:
Maybe that's the case.

[00:31:39] Speaker 00:
I didn't see that case in their briefing.

[00:31:40] Speaker 00:
There is no other named plaintiff here in this case, though.

[00:31:44] Speaker 00:
Parrish is the only named plaintiff.

[00:31:45] Speaker 00:
And so there's no one left really at the district court stage to prosecute the case.

[00:31:51] Speaker 00:
And so without any residual interest in the case at all, it's unclear how Parrish prosecutes the monopolization claim, even if it prevails.

[00:32:00] Speaker 00:
I seem running low on time, so I did want to briefly address the class certification arguments that we heard.

[00:32:06] Speaker 00:
I think it was Tyson that Council for Parrish mentioned, and he also mentioned taking merits issue.

[00:32:12] Speaker 00:
from the jury.

[00:32:14] Speaker 00:
I don't think the district court violated Tyson at all.

[00:32:17] Speaker 00:
Tyson arose after a jury verdict in that case, and the Supreme Court in that case said, with respect to pure merits issues, when there's a battle of the experts, the court should defer those issues to the jury.

[00:32:30] Speaker 00:
It did not say that district courts conducting a Rule 23 analysis, once they make an admissibility determination,

[00:32:37] Speaker 00:
They dust their hands and say, I'm done.

[00:32:39] Speaker 00:
I adopt wholesale the plaintiff's expert testimony.

[00:32:43] Speaker 00:
My hands are tied because I can't make a summary judgment finding on this record.

[00:32:47] Speaker 00:
I think if you think about the rigorous analysis that district courts are supposed to perform at the Rule 23 stage, there's really no ambit for that under Mr. Berry's reading of Tyson.

[00:32:58] Speaker 00:
The invisibility determination is everything.

[00:33:01] Speaker 00:
And then that's it.

[00:33:02] Speaker 00:
And so maybe we'll hear from him when he gets back up as to what he thinks the proper role

[00:33:07] Speaker 00:
of the district court is under Rule 23, and whether it's only making invisibility determinations and then adopting expert testimony wholesale.

[00:33:16] Speaker 00:
So unless the panel has any other questions, I'm happy to answer.

[00:33:19] Speaker 00:
Thank you very much for your time.

[00:33:29] Speaker 03:
You're not entitled to any, but because you came here in this weather, I'm going to give you two minutes.

[00:33:35] Speaker 02:
Two minutes.

[00:33:37] Speaker 03:
Three?

[00:33:39] Speaker 03:
No more than three.

[00:33:39] Speaker 03:
I'm going to cut you off at three.

[00:33:41] Speaker 02:
Literally.

[00:33:46] Speaker 02:
Your Honor, as to that distinction about Tysons only goes to merits, persuasiveness of experts rather than class, common impact issues.

[00:33:57] Speaker 02:
The Supreme Court in Tysons says

[00:34:02] Speaker 02:
A district court cannot decline certification merely considers the plainest evidence relating to common class actions to be unpersuasive and unlikely to succeed.

[00:34:11] Speaker 02:
It's talking about class issues.

[00:34:13] Speaker 02:
It's not talking about their contorted reading that only goes to merits issues at trial.

[00:34:19] Speaker 02:
So Tyson's height verba applies here.

[00:34:25] Speaker 02:
As to the Supreme Court never has said

[00:34:32] Speaker 02:
You need to be the best litigant or the best private enforcer of the antitrust laws.

[00:34:39] Speaker 02:
You just need to have the requisite standing in antitrust price injury.

[00:34:45] Speaker 02:
Once again, Anderson Living Trust did not have a prejudicial ruling on a major merits decision before it, a final decision.

[00:34:55] Speaker 02:
It was not there.

[00:34:56] Speaker 02:
And you can't apply Anderson Living Trust to something

[00:35:01] Speaker 02:
that it doesn't address.

[00:35:04] Speaker 02:
This court should look to Crowley Patrolling, it should look to Schmier, and it should look to the Corley 11th Circuit merger case that we also cite, and I didn't have time to discuss.

[00:35:15] Speaker 02:
However, moving on, I want to address quickly on the class issues I got.

[00:35:23] Speaker 02:
I didn't finish up on typicality.

[00:35:27] Speaker 02:
Let me just read for the record where Miravit's testimony was ignored or discredited by the district court under Tyson's.

[00:35:37] Speaker 02:
Typicality, Appendix 96-98, Adequacy of Representation, Appendix 100-103, Predominance 106-112.

[00:35:46] Speaker 02:
If you check the record, you'll find that now as to typicality, Dr. Miravit

[00:35:54] Speaker 02:
testified, because more competition produces lower prices, and this is an initial in his reply report, all class members are injured by the PIC overcharging and the court's typicality reasoning does not apply.

[00:36:12] Speaker 02:
Also, there are two other issues on error typicality.

[00:36:21] Speaker 02:
the Court of Appeals in Zeta and Lorazepam, DC Circuit, Fourth Circuit, have found standing issues are not relevant to typicality.

[00:36:31] Speaker 02:
The Court went off on standing and typicality.

[00:36:34] Speaker 02:
That's the wrong analysis.

[00:36:36] Speaker 02:
Secondly, the District Court fundamentally misunderstood this antitrust standing query on the merits, saying,

[00:36:45] Speaker 02:
Parrish suffered no pick overcharge injury because it liked the barred picks.

[00:36:51] Speaker 02:
The issue is, is there antitrust price injury?

[00:36:54] Speaker 02:
Not whether you liked them or disliked the monopolized product.

[00:36:58] Speaker 02:
And I'm out of time.

[00:36:59] Speaker 02:
Thank you, Ron.

[00:37:00] Speaker 02:
Thank you for your consideration.

[00:37:03] Speaker 03:
The case is submitted.

[00:37:04] Speaker 03:
Council are excused.