Legal Case Summary

Theodore also on behalf of the appellant and across the billy, I would like to reserve seven minutes for the Court, please. Now please, the Court. Plan of ska not escape the fact that this case is all about reducing prices. The injunction that the Court below issued tells it all. The injunction prohibits discounts relative to market penetration, linked to market penetration. That is what the Court below decided. And planives can't prevail in this case because Eaton's prices were never below Eaton's costs. That was never disputed and never proved otherwise. The plain, simple and unavoidable fact is that the plaintiffs failed in this business because they could not or would not meet Eaton's above-cost prices. That's exactly a... It is meaningless. It is meaningless. In fact, the judge said so at the point of granting the injunction. The judge said she said that this injunction is not going to do the plaintiffs any good. They will have no direct benefit of this. But I'm going to go ahead and issue the injunction because of the possibility that they might someday re-enter the market. But there was no evidence that would support the proposition that was any real probability to enter the market. So, you know, on the point is... There might be some benefit to the consumer, but that's not the standard for the... I don't think there would be a benefit to the consumer as a matter of fact judge Fisher because what that conduct that we're talking about here is the reduction of prices. So, if you provide an injunction that is as broad as this which says, you are prohibited from linking discounts to market penetration goals or anything like that, you're telling the defendant, you can't reduce prices which the consumers wanted, the purchasers wanted. So, not only would this judgment... this judgment would affect the consumers and that's the way I was answering your question, but it would not benefit the consumers

. It would certainly not benefit the plaintiffs in this case and the injunction is therefore unjustifiable. But with respect to liability... Why are you on that question? The answer was exactly the... You also led to the standard question. There is a standing question. There is an article three question. There is just simply not under these circumstances no article three standing to issue this injunction. There is no irreparable injury. There is no concrete specific imminent risk of harm to the plaintiffs. And therefore, there's an article three question in addition to the anti-trust standing question. This... the very language that the judge used, in the first sentence by saying that there's no possibility... There's very little possibility that there would be any direct benefit to the plaintiffs as a result of this injunction answers the question. That injunction cannot be sustained on the basis of that factual record. Now, we also think it is very, very important in this case that the motion for a judgment as a matter of law should have been granted. Under this court's decisions, under the decisions in many circuit courts that have considered comparable facts. There is no justification for proceeding with an anti-trust complaint. The Supreme Court is virtually unanimous on very, very few things, as we know. But on this issue in the Warehouse of Case, in the language that all the court agreed upon in the link line case, going back to the Brook Group case, lowering prices is a good thing for consumers. And when people are in competition and they want to develop a mechanism so that they can sell as many of their products as possible, by linking their ambition to the reduction of prices, that is a good thing. And as the Supreme Court has said, it is very damaging, as long as those prices are not predatory, as long as they're above cost, the Supreme Court has said, if it's a pricing case, there's no question that this is a pricing case. That's what the judges and junctions did specify

. And that's what the district judge said, the hammer was in this case. It's all about pricing. The plaintiff's definitely attempted to call it something other than what it was. And they wanted to avoid the law that I was talking about. But the fact of the case, the guts of the case, the gist of the case, the core of the case, is what was the hammer, that's what the district judge called it, was the offer of reducing prices if you purchase a certain percentage of your needs from this point. But you can not only acknowledge the fairness of your answers, it wasn't exclusive. It doesn't really matter. You could even call it an exclusive dealing case, the plaintiffs try to do that. But as this court specifically said in the race tire case, that's not a violation of the antitrust laws. A competitor is entitled to say, I would like to get all of the business. But this clearly was not an exclusive dealing case because the original equipment manufacturers, the customers for these products, could purchase from the plaintiffs anytime they wanted. Nothing in these agreements. And I think you'll see this on page, the Joint Appendix 9 and 10, the judge specifically said, these were not exclusive dealing arrangements because at all times, the purchasers of these products, the consumers of these products, at all times, could buy from the plaintiffs. And at all times, the plaintiffs could sell their products for the original equipment manufacturers. So there was no exclusivity what there was was an incentive to buy from the most efficient competitor. Yes, I am. I'm not using the product as a rule of the truck. I've meant it in terms of the consumer of this product initially. But as a matter of fact, the purchasers of the trucks with these equipment in them were the ultimate beneficiaries because the record demonstrates that eaten insisted that its reduction in prices be passed on to those ultimate consumers. At all times, they could. That's correct. That is a very important distinction. And I was going to make that if I had time that they did not have to give that choice. I mean, ultimately, the builders of the trucks wanted, because the market was collapsing, to make it as efficient as possible with respect to the sales of those. I was wondering, I was wondering if you were not going to buy from this case. I was wondering whether the only purchases of trucks that were right simply indicated purchase of the product was not going to be passed on to the consumer. That's absolutely true. The record is very clear that not only were the original equipment manufacturers sophisticated, powerful, and no pushovers. If this was something that was forcing something down their throat, they wouldn't have accepted it. And the purchasers of the trucks are generally sophisticated, large purchasers of trucks, and they were doing the best that they could, and they were benefiting from this process

. So what the Supreme Court has said in connection with this, not only are low prices advantageous, but we don't want to penalize or put people in a situation where they can't figure out what the rule is with respect to the pricing of their products. In the most recent decision, I think, was the link line case, the Chief Justice speaking through the court, said, that lawyers have to be able to explain these things to their client. They have to be clear rules. They have to be clear rules because we have to know what damage has been done by the allegedly improper practice. That's one reason. Secondly, because we don't want to discourage low prices. And thirdly, we do not want to have inefficient competitors to use the antitrust laws as a protection so that they can raise prices above efficient levels. Now, in this situation, the records repeat with evidence that the plaintiffs in this case could have reduced their prices. That's with respect to these prices, but was doing the best it could to capture as much of the market as they put. Understandably, that's what we expect competitors to do. The plaintiffs in this case were simply not willing to reduce their prices to be at a competitive level. But the judge must judge the jury's selling the return of a lot of both. What did they have to propose? The jury is the one that we had to say, the plaintiff proved this. Yes, and the jury instructions didn't focus on price cost at all. That never got to the jury. It shouldn't have gotten to the jury because the price cost test, the Supreme Court says, if you're pricing above cost, and unless the plaintiffs proves a dangerous probability that those costs will be recovered later on in higher prices, this case never should have gone to the jury. What if the jury wasn't in the jury something and had it applied to the price? Yes, and what the jury focused on was that question of the exclusivity that you were talking about. And the jury instruction basically said, if you find that the OEMs, the original equipment manufacturers were committed to buy a substantial share of the jury, and the original equipment manufacturers were committed to buy a substantial share of the market from the defendants, that was a de facto exclusive arrangement. That in and of itself would not have satisfied the antitrust laws as the race, race, tire case makes clear. We don't challenge the instruction because the instruction doesn't instruct with respect to a standard that violates the antitrust laws. This court in the race tire case specifically said, exclusive arrangements are even to be encouraged because you want competitors to go out and try to do this. But the fact is, with respect, is certainly these prices were sufficiently attractive that the OEMs wanted to purchase from the attractive competitor. You are not going to solve the well. You aren't challenging the instructions. So in a sense, the ability to mad at the question of sanity is what this case could get to the truth? This case should have been called out. Frecisely. And that's what happened. That's correct. And then the Supreme Court in this area has several times said, this is a question of law, the Supreme Court has done it on motions to dismiss. And JMLO, JMO, L motions, which is what should have happened here

. The fact is that you cannot violate the antitrust laws. If you're pricing above cost and you're not and you don't demonstrate if you're the plaintiffs, that there's a dangerous probability of recoupment of those costs, this case did not even come close to meeting those standards. It should have been this. I know I don't think so. I think it unquestionably is a pricing case and you can look at the injunction because that's the only thing the judge focused on. But if it isn't the pricing case, it is something in the ether as making your opportunities to your customers sufficiently attractive that they only do business with you. That's why the plaintiffs kept calling an an exclusive dealing case. But the contracts on their face were not exclusive. We do have more than an injunction. We have the record case. You who are just as mad law and we have the jury instruction in the case. We have a lot more. Even if there is a theme fact in the injunction, that wouldn't be very far when it's thought it would be the injunction that it doesn't appear. It became part of the reconsideration motion. One good argument is that the injunction isn't a tailor. It doesn't address the issue of the rain vision. Well, my point was that's what the judge thought the case was. That's what the plaintiffs lawyers said when they argued in favor of the admissibility of their expert witness. The expert witness referred to it as the incentive which was driving the whole thing. The judge referred to the pricing as the hammer. So what I'm saying, Your Honor, is this unquestionably was a pricing case because that was the only thing that provided the incentive. That was the core of what provided the incentive. And the fact that there was no damage here because the other information about this or the expert opposed to the party was not allowed. What kind of ridiculous, what would happen in that context? Well, I would say that I think I understood your question. If you determined not to overturn the jury verdict as that was. And if you left the damage resolution in place, which I think the evidence and police supports this witness didn't know what he was doing with respect to damages and eliminated the injunction. We would be, we'd accept that outcome. But I think as a matter of law, it's from this court with respect to antitrust. It would be a very unsatisfactory because it would be send the message that you cannot induce consumer loyalty with price reductions. And that's the antitrust for the antitrust

. Okay, Mr. Wilson, thank you very much. Thank you, Your Honor. J. Fast down for the plaintiffs, the F. Maritura and Maritura transmission. Let's spend a few minutes on the actual record here. And one point quickly on the injunction. As you all will recall, we are cross appealing on the injunction because the district court wouldn't listen to our position on the scope of injunction. I don't think that the scope of the injunction indicates that this records me or the case, especially when you look at the district court's decision on the judgment as a matter of law motion that he made, which the district court rejected. And the district court there recognizes that there is much more here beyond these limits. There. I thought this was high enough for me, but sometimes I have that issue. So that when you look at the J. O. Millell decision, you see the district court itself recognized this case as much more than the market share rebate, Teton talks about, and continually is the only thing it wants to talk about. And the important thing here is that no matter how it tries, Eaten can't turn this into a case of an inefficient competitor that was defeated by the workings of pricing competition. In particular, at the Joint Appendix pages, 1495 to 96, Eaten's own economist, Professor Murphy, conceded a trial that it's reasonable to consider plaintiffs and equally efficient competitor of Eaten. That's a 1495 to 96. And in fact, plaintiffs were in a key way a more efficient competitor than Eaten because they had the advanced two pedal freedom line product. And that was in a category, the automated mechanicals that both plaintiffs and Eaten recognized was about to grow dramatically because of its benefits, and yet Eaten wasn't going to have an analog to the freedom line for years. Equally, Eaten can avoid their recognition talking about the Supreme Court cases that it didn't win a battle of consumer choice by offering consumers a better deal. What it did was use its monopoly power over the OEMs to deprive the consumers, the fleets, the mom and pop truck buyers, to deprive them of their traditional choice of transmissions and block them from access to a better product, the freedom line. Now, if you read Eaten's briefs, as we all did, it repeatedly calls its rebates quote, modest, having seven times a two briefs that says that. So it must, it must mean that. But then, its Professor Murphy made another major concession. This is the Dependix 1497, the very next page, where he testified that quote, such small, such small rebates wouldn't exclude a competitor. In Planned Of Scores, we're a competitor that had a better product, and as Eaten conceded a very formidable partner, ZF Friedrichshaven. So Eaten didn't stop. Eaten just wants to talk about rebates, but it didn't stop, believe in its market share rebates

. In contrast to the Warehazard case, Eaten Science, they talked about quote, unilateral pricing measures, and that's a page 322 of Warehazard. Eaten used its monopoly power to engage in an array of non-unilateral, concerted action with the OEABS, that even it can't claim just represents price competition, or even represents price competition at all. When Eaten just refuses in its opening brief, and its reply brief, and again an argument, it refuses to even acknowledge the existence of these facts. So this is not a case where a seller goes to a customer and say, if you voluntarily decide to buy more from me, I will give you a better price. But this case is about, and why we call it exclusive dealing. Eaten was saying, I'm a monopolist, and you, for OEMs, you know it. And you will, not may, you will buy all of you virtually everything from me, and you will do so for five to seven to ten years until any trace of any significant competition is long gone. And that's why not only do we submit that our claims are appropriate under the cases we've cited, we submit that our claims are off-force you are to the claims in the cases that we've cited like the end-sply and the pages. And importantly here in contrast to three-amid hook group and dense ply and I'm sorry three-amid lipages and the dense ply and rather Williams in a hook group, Eaten didn't have the most advanced product. It was in a position of being a long time monopolist that was about to be leapfried by a new and very strong zf competitor, but it did have monopoly power, which it doesn't contest on appeal. And this wasn't just the monopoly power over transparent tape in the caverns of a Walmart or a target, obviously not good for Walmart, but hardly deadly to its business. Here Eaten had a chokehold on the very business of the OEM truck builders. If you didn't have a transmission, the one you wanted, when you needed it at a competitive price, you couldn't make a sale. And you were already in separate cases. This year old's, our use, whatever tried to get into the greed that you call this exclusive deal in case of that, I think he sort of agreed. Well, he argues no matter what you call this, if there has to be a price cost analysis, the Supreme Court has said what you're building costs and what you're pricing predatory, if you can't find it. Why is he not correct? Because what the Supreme Court is talking about in a brew group in wirehousers are pricing practices, as wirehousers called it after brew group unilateral pricing measures. And that's not this, because what we had here was not as they said the if that, think of brew group. In brew group you had someone with 11 or 12%, so they weren't a monopolist. They went to their wholesalers and said, look, we'll offer you a better price if you buy more. They had discounts and volume rebates. That's not what happened here, because in fact, Eaton's argument plays right into this. Eaton says that at least for a while our market share with the OEMs went up. Well, it went up because people wanted the freedom line because of all its advantages, even though the freedom line was a much higher price product than basic manual transmission, people wanted that product. So he didn't stop with saying, gee, if you buy more from me, even if you buy 92% from me, I'll give you a better price. But that's it. What Eaton said is, you will buy this from me. And that's why it went to the whole array of conduct. Well, but that was a concern, your honor, of the OEMs. And you see it fear of retaliation

. Maybe I won't give my deliveries on time. Maybe I won't get the products I want. Maybe I won't give the same prices, my competitors. You see the fear of the OEMs. For example, Volvo, Volvo was an OEM, also made a small percentage of its own transmissions. Eaton's power was so strong that it forced Volvo to agree that it would price its own transmissions, non-competitively to eat transmissions, eat Volvo's own trucks, the Volvo's own competitors. They forced them into this price fixing agreement that Volvo said, okay, because I need you so much, I will disadvantage my own products in favor of your products. Eaton went to PACAR. And PACAR, it said, this is with respect to the performance transmissions, and it's during appendix 26, 47 to 48. Eaton said, don't you forget that you have a big percentage of your sales are what they call performance trucks. They're not just on off road construction trucks, logging trucks, those kinds of things. Not only am I a monopolist overall, but I am the only source of supply for those products. And that's the difference here, is that Eaton didn't just let it be as to whether the OEMs decided to buy more or not more. They came in and said, well, we're good to do. And there's one more point, and I think you're right or inverted to this earlier, is the importance of the truck buyers. Historically, this market ran on what was called a spec basis, so that term. Meaning the truck buyers could specify the components of their truck. The trucks, you had the data book, as you can say, I want this transmission and these brakes and these axles and these seats and so forth. And what Eaton did was it conspired with the OEMs. It used its muscle over the OEMs to block the truck buyers choice. Let's talk about things that we'll see whether we think this is price-couple. Well, that's how the trucks work. That was exactly how the trucks were until Eaton said, now OEMs, we're going to enter into a partnership where you're going to block visibility, block accessibility of the truck buyers to competitive products. That was exactly how it was until Eaton said, no more because they couldn't deal with the freedom lot. Now, they wanted only placement. For example, Mr. Client's testimony, at Appendix 261-273, explains how the freedom lot, which was a product Eaton didn't have an analog for, disappeared from the OEM data books because Eaton said, I want that out. Now, because we just needed a buyer and then said, we're going to get our truck and do an actual, what do you want freedom lot transmission? I thought it was a free lot of transmission. At a higher price because they were charging price penalties for transmissions that weren't standard and that I don't remember. See, it's a whole combination of factors

. The freedom line would be installed by the truck builder in the truck. I don't think there's anything in the record about truck buyers just buying the transmissions directly and installing them. What happened was Eaton closed off. There were four places we could sell to, four OEMs and they closed off every one of them from five to seven to ten years and they said, what we will do is we will want you to take our product out of the data book. Now, how is that possibly pro-consumer? I needn't, doesn't even have an analog. It's not a preference. It's just we want you to disappear. And then we will have them imposed price penalties, resale price penalties so that if somebody comes in and says, I like that freedom lot. You have to say, you OEM have to say that I'm going to charge you more and they were penalties. Note that about it. Council says that Eaton wanted these rebates passed along. There is no evidence of that. In fact, you can look at every one of those LTAs, there is nothing about passing along these rebates and we cited in our brief evidence showing that Eaton knew, for example, for Freightliner, that it was not being passed along. They say that our rebates are not getting down to the field level. So these were penalties that were imposed not only on us, by the way, but also on Volvo, as they said. In Volvo, they penalized our transmissions. Then they... Yes. Check. I think in the... Yes. ...the time to space in the parallel press. But the parallel press

... ...that the Supreme Court has cautioned us, not being found to have been on this with respect of courts and curries deciding on a law cost. Price like you and the competitive violation of the press and the public. What they're saying with Eaton was essentially in law. We have a press for our agency transmission. But, you know, who are you by? Who are you by, particularly over a certain percentage of your criminal transmissions within the field? Who can be over a certain percentage of your criminal transmissions? But, nowhere in the record does the better say this for their cost. Let me answer that in three ways, by my way. Okay. And I guess my question is, you know, why is that... ...why is that in conflict with the public, especially for us to evaluate these cases? And why is that a violation of the press? Because it's not this case. Anyway, you, your honor, says we're talking about different cases. They're absolutely right. In Eden's opening brief, they said nothing about all this other conduct that taking us out of the data book, ...the taking trucks with our transmissions out of sales packages and sales promotions, ...refusals to quote residual values on trucks with our transmissions, ..

.resail price penalties. They said nothing about that. And we said at the beginning of our statement of facts, ...basically, we're sorry we'd have to spend a lot of time on this, ...because they didn't tell you what this case is about. And then if you look at their reply brief, they still don't deal with data book exclusion, ...resail price penalties, at all the rest on and on, including, for example, ...PACAR, PACAR said, I'm going to impose a limit on the incentives that we could provide ...there are truck buyers. How is any of that pro-consumer? Yes. ...the transfer-based point. You could have a low cost price and steal the attack credit, is that right? When, if the case is only about, as the Supreme Court calls it, ...as Eden calls it, it's repricing practices, ...as warehouseer talks about it, unilateral pricing measures. If all you had were unilateral pricing measures, ...and their pricing were above cost in all respects, ...then that would be one case, but it's not this case. Right, right. And so it is possible to have a low cost price and steal, have a knowledge. Of course. I know it's good to ask, implicit, but I think that's where you start. Absolutely, because here you see, when Professor Murphy, when Eden says that ...their rebates were modest, were such small rebates, ...but that's telling you is one or two things. One is, they didn't want to sacrifice the current profitability by giving big discounts. Number two is what they're saying is, they realized it wouldn't work, ...because they didn't have the better product. In Brookroof, Brown Williams was attacked by a low-price competitor, ...the generic cigarettes. In the pages, 3M was attacked by a low-price competitor, the private label, .

.as warehouseer talks about it, unilateral pricing measures. If all you had were unilateral pricing measures, ...and their pricing were above cost in all respects, ...then that would be one case, but it's not this case. Right, right. And so it is possible to have a low cost price and steal, have a knowledge. Of course. I know it's good to ask, implicit, but I think that's where you start. Absolutely, because here you see, when Professor Murphy, when Eden says that ...their rebates were modest, were such small rebates, ...but that's telling you is one or two things. One is, they didn't want to sacrifice the current profitability by giving big discounts. Number two is what they're saying is, they realized it wouldn't work, ...because they didn't have the better product. In Brookroof, Brown Williams was attacked by a low-price competitor, ...the generic cigarettes. In the pages, 3M was attacked by a low-price competitor, the private label, ...the guy, the pages. So if you're attacked by a low-quality, low-price competitor, ...you may say, okay, well, I'll respond by lowering my prices. But Eden was in this position. This is a situation that none of Eden's cases, in fact none of our cases, ...when the monopolist didn't have the best product, ...and so lowering prices as Professor Murphy said, this is 1497. He has still had a trial. This would not have defeated the plaintiffs. Plaintiffs were driven out of the market as two of the OEMs, ...specifically and separately, testified, stated. In retrospect, Eden's conduct killed first ZF Maritory, ...the joint venture and the freedom line. And then after three more years of trying, the Maritory transmission. So I think the short of it is, it's just not the case, ...and Eden's counsel again gets up at oral argument and says, .

..the guy, the pages. So if you're attacked by a low-quality, low-price competitor, ...you may say, okay, well, I'll respond by lowering my prices. But Eden was in this position. This is a situation that none of Eden's cases, in fact none of our cases, ...when the monopolist didn't have the best product, ...and so lowering prices as Professor Murphy said, this is 1497. He has still had a trial. This would not have defeated the plaintiffs. Plaintiffs were driven out of the market as two of the OEMs, ...specifically and separately, testified, stated. In retrospect, Eden's conduct killed first ZF Maritory, ...the joint venture and the freedom line. And then after three more years of trying, the Maritory transmission. So I think the short of it is, it's just not the case, ...and Eden's counsel again gets up at oral argument and says, ...this is just about pricing. Still doesn't deal with all the other conduct that they needed to do. And what they did was they reached to the OEM and grabbed them by the throat ...and said, you need me. I'm the monopolist. And I'm 100% of the performance transmissions. And I want you to block the truck buyers, the consumers, ...who may be sophisticated, may not be sophisticated. We didn't hear a record say that, how many are sophisticated, ...and how many are not. We wanted to block them from their traditional choice of transmissions. And we wanted to block them, even from the visibility of the better product, ...the freedom line that Eden didn't have and didn't have for years. All right, Mr. Fass, now let me direct you to another one. Sure. I've been supporting your important work in the past. Just talking about families. Absolutely. You were able to get the corn allowed with Mr. Durantis's testimony on liability

..this is just about pricing. Still doesn't deal with all the other conduct that they needed to do. And what they did was they reached to the OEM and grabbed them by the throat ...and said, you need me. I'm the monopolist. And I'm 100% of the performance transmissions. And I want you to block the truck buyers, the consumers, ...who may be sophisticated, may not be sophisticated. We didn't hear a record say that, how many are sophisticated, ...and how many are not. We wanted to block them from their traditional choice of transmissions. And we wanted to block them, even from the visibility of the better product, ...the freedom line that Eden didn't have and didn't have for years. All right, Mr. Fass, now let me direct you to another one. Sure. I've been supporting your important work in the past. Just talking about families. Absolutely. You were able to get the corn allowed with Mr. Durantis's testimony on liability. But you could have viewed from offering Mr. Durantis's testimony on the damages ...and denied the motion for recidivation and emotion for better treatment. Why was this important? It was wrong. All the way down the line on those points, your honor. Number one, on the original calculations of Dr. Durantis. Two reasons. He relied on a document called the, there's that in a document called the November 2000 Strategic Business Plan of ZS Maritore. That document was admitted into evidence, at trial, with no objection. And all the cases show the advisory committee note show, the language of 703 shows, that that alone is enough for the expert to be able to rely on it. That was the old fashion way, I think, how the expert would rely on it. The expert could rely on admissible evidence. 703 went and brought in the ability of an expert to rely on information by saying you can also rely on information that's reasonably reliable by experts. But the core basis, and all the cases of Portis Eden doesn't cite a single case to the contrary. And it makes sense because if the information is reliable enough for me to show it to the jury, to read it to the jury, to argue it to the jury, then there's no reason it's not good enough for Dr. Durantis to rely on it for his calculations. Now, Eden says, well, there are two phases of trial here. It doesn't say why that matters. The strategic business plan is already indefinite. And Eden identifies no objection, a maritalia's objection, that it would have made if damages were part of the first trial that it couldn't have made. Otherwise. So just as a matter of law, the district court was wrong, the admissibility establishes usability by Dr. Durantis. But of course, there's more, and then we go to the reliability of the expert's proc. And Eden has no answer to this court's declaration of pages that internal projections for future growth are inappropriate basis for estimating lost profits. And that makes a lot of sense when you look at the evidence here in terms of indicia, of reliability. Here we have, as the record shows, experienced business people who are doing these plans for purposes of deciding how to manage their business

. But you could have viewed from offering Mr. Durantis's testimony on the damages ...and denied the motion for recidivation and emotion for better treatment. Why was this important? It was wrong. All the way down the line on those points, your honor. Number one, on the original calculations of Dr. Durantis. Two reasons. He relied on a document called the, there's that in a document called the November 2000 Strategic Business Plan of ZS Maritore. That document was admitted into evidence, at trial, with no objection. And all the cases show the advisory committee note show, the language of 703 shows, that that alone is enough for the expert to be able to rely on it. That was the old fashion way, I think, how the expert would rely on it. The expert could rely on admissible evidence. 703 went and brought in the ability of an expert to rely on information by saying you can also rely on information that's reasonably reliable by experts. But the core basis, and all the cases of Portis Eden doesn't cite a single case to the contrary. And it makes sense because if the information is reliable enough for me to show it to the jury, to read it to the jury, to argue it to the jury, then there's no reason it's not good enough for Dr. Durantis to rely on it for his calculations. Now, Eden says, well, there are two phases of trial here. It doesn't say why that matters. The strategic business plan is already indefinite. And Eden identifies no objection, a maritalia's objection, that it would have made if damages were part of the first trial that it couldn't have made. Otherwise. So just as a matter of law, the district court was wrong, the admissibility establishes usability by Dr. Durantis. But of course, there's more, and then we go to the reliability of the expert's proc. And Eden has no answer to this court's declaration of pages that internal projections for future growth are inappropriate basis for estimating lost profits. And that makes a lot of sense when you look at the evidence here in terms of indicia, of reliability. Here we have, as the record shows, experienced business people who are doing these plans for purposes of deciding how to manage their business. As Mr. Lewis testified, we do plan to decide how much to spend, whom to hire, what products to develop. There's no reason to think that they were kidding themselves, especially since this plan was six years before the litigation. So even Eden does argue that there was that litigation paint to the plan. And in fact, we know that they were being very careful here because the document that Dr. Durantis used. The projections there had already been reduced twice because of recent adverse market developments. And the ZF Maritaur Board said, look, we don't want you to be over optimistic. We want to make sure that you're not projecting too much. And therefore, we're mismanaging our business, we're spending too much money, or whatever. And we also know that Eden's own projections as to the growth of the automated mechanical segment that the Freedom Line was part of were enormous. They expected, they said in 2000 to 2001 that by 2004 and 2005, they expected that segment to be up to half the sales. So that fully supported our projections as to the potential growth of the Freedom Line. And then we had Dr. Durantis who tested and retested. What about your argument that you should analyze the demand? Absolutely, Your Honor. Under the language of Peoli, as soon as the district court's this downward decision came out, we said, well, first of all, we were surprised by 703, which Eden had incited in the whole Daubert proceeding. Let me say, look, as an alternative, if you don't like the data he used, but you do approve the methodology, which the district court did both in the Daubert decision and then in the decision on the motion for clarification later said, I wasn't rejecting the methodology. Then we'll put in new data, not new data, data that was already in his report and supporting materials. But we'll put it in instead of the strategic visits plan data and we should be on our way. Your Honor, I think that under Peoli and PennyPak, what this court has been teaching is, you can imagine, we can all imagine some egregious circumstances. But that wasn't the case here, especially where we weren't even on notice of a 703 exclusion possibility. But the district court said, because I'm not going to give you another opportunity to modify your calculations. But in reality, what the district court wouldn't do is give us one opportunity to modify our calculations. It was one and done based on what Peoli and PennyPak talked about as critical evidence as we've discussed. Absent his ability to testify, the district court said we have no damages, which is, of course, very act critical to us and critical to the public interest and the enforcement of the antitrust laws. And given the bifurcation, or we said to the district court, please let's work out the damages issue first. And then let's go to trial. And first the district court was amenable to that and then changed its mind and said, no, let's do a bifurcated trial. And maybe we'll never have to deal with damages

. As Mr. Lewis testified, we do plan to decide how much to spend, whom to hire, what products to develop. There's no reason to think that they were kidding themselves, especially since this plan was six years before the litigation. So even Eden does argue that there was that litigation paint to the plan. And in fact, we know that they were being very careful here because the document that Dr. Durantis used. The projections there had already been reduced twice because of recent adverse market developments. And the ZF Maritaur Board said, look, we don't want you to be over optimistic. We want to make sure that you're not projecting too much. And therefore, we're mismanaging our business, we're spending too much money, or whatever. And we also know that Eden's own projections as to the growth of the automated mechanical segment that the Freedom Line was part of were enormous. They expected, they said in 2000 to 2001 that by 2004 and 2005, they expected that segment to be up to half the sales. So that fully supported our projections as to the potential growth of the Freedom Line. And then we had Dr. Durantis who tested and retested. What about your argument that you should analyze the demand? Absolutely, Your Honor. Under the language of Peoli, as soon as the district court's this downward decision came out, we said, well, first of all, we were surprised by 703, which Eden had incited in the whole Daubert proceeding. Let me say, look, as an alternative, if you don't like the data he used, but you do approve the methodology, which the district court did both in the Daubert decision and then in the decision on the motion for clarification later said, I wasn't rejecting the methodology. Then we'll put in new data, not new data, data that was already in his report and supporting materials. But we'll put it in instead of the strategic visits plan data and we should be on our way. Your Honor, I think that under Peoli and PennyPak, what this court has been teaching is, you can imagine, we can all imagine some egregious circumstances. But that wasn't the case here, especially where we weren't even on notice of a 703 exclusion possibility. But the district court said, because I'm not going to give you another opportunity to modify your calculations. But in reality, what the district court wouldn't do is give us one opportunity to modify our calculations. It was one and done based on what Peoli and PennyPak talked about as critical evidence as we've discussed. Absent his ability to testify, the district court said we have no damages, which is, of course, very act critical to us and critical to the public interest and the enforcement of the antitrust laws. And given the bifurcation, or we said to the district court, please let's work out the damages issue first. And then let's go to trial. And first the district court was amenable to that and then changed its mind and said, no, let's do a bifurcated trial. And maybe we'll never have to deal with damages. But having bifurcated, there was certainly no pressure. And the standard of PennyPak is incurable prejudice to the defendant. There was no prejudice, much less incurable prejudice, that now we've had almost three years since we said, okay, here are our alternative calculations. There's no damages, phased trial, scheduled. So there's no prejudice, much less incurable prejudice. Thank you. I will try to be efficient. We've heard that the plaintiffs were an equally efficient competitor. They may have been an equally efficient competitor, but as I said at the very beginning, they were either unable or unwilling to meet the price reductions. So if they had the capacity to do it, to reduce their prices, they did not do that. We just heard that these rebates were not modest. They ranged from one fourth of 1% up to 3%. Now, you could argue about whether they were modest or not, and they were accumulative based upon the overall demand for the products. But they were market share discounts based upon what the OEMs want. The record is clear that what was happening at that point in time is that the market was falling apart. The demand for trucks was cut in half during this period of time. So the OEMs themselves didn't want volume discounts. They specifically wanted to know that they would be able to meet the standard for the rebates. So the OEMs were not only a market share discount, but also a market share discount. That benefited them. Also, you're on it. That benefits the smaller competitor, the smaller OEM. You might not be able to match the larger OEMs with respect to total sales volume. But they can always match a market share discount. Fear of retaliation. I think that we heard a lot about that just a moment ago. These were powerful, original, equipment manufacturers. They had the power to determine whether they would accept these arrangements or not. Two of them made their own transmissions. With respect to retaliation itself, we've heard something about that, but it never happened

. But having bifurcated, there was certainly no pressure. And the standard of PennyPak is incurable prejudice to the defendant. There was no prejudice, much less incurable prejudice, that now we've had almost three years since we said, okay, here are our alternative calculations. There's no damages, phased trial, scheduled. So there's no prejudice, much less incurable prejudice. Thank you. I will try to be efficient. We've heard that the plaintiffs were an equally efficient competitor. They may have been an equally efficient competitor, but as I said at the very beginning, they were either unable or unwilling to meet the price reductions. So if they had the capacity to do it, to reduce their prices, they did not do that. We just heard that these rebates were not modest. They ranged from one fourth of 1% up to 3%. Now, you could argue about whether they were modest or not, and they were accumulative based upon the overall demand for the products. But they were market share discounts based upon what the OEMs want. The record is clear that what was happening at that point in time is that the market was falling apart. The demand for trucks was cut in half during this period of time. So the OEMs themselves didn't want volume discounts. They specifically wanted to know that they would be able to meet the standard for the rebates. So the OEMs were not only a market share discount, but also a market share discount. That benefited them. Also, you're on it. That benefits the smaller competitor, the smaller OEM. You might not be able to match the larger OEMs with respect to total sales volume. But they can always match a market share discount. Fear of retaliation. I think that we heard a lot about that just a moment ago. These were powerful, original, equipment manufacturers. They had the power to determine whether they would accept these arrangements or not. Two of them made their own transmissions. With respect to retaliation itself, we've heard something about that, but it never happened. There was never any evidence that was actual retaliation or specific threats of you don't do this. Eaton is going to quit selling transmissions. That doesn't make any sense. And they never did and they never would have. They never retaliated. The problem that the plaintiffs face is that they did not want to reduce their prices. With respect to the question of whether these agreements were exclusive. As I cited from page 9 and 10 of the joint appendix, these are the words of the district judge. The long-term agreements were not, quote, were not exclusive. Each customer remained free to buy these transmissions from other suppliers, including ZFM. The incentives offered by Eaton were what each customer wanted. Now that's very much like race tire. The competitor and race tire could have competed and did compete with respect to these exclusive arrangements. And sometimes succeeded and sometimes didn't. And the fact that they were exclusive, whether it's the jury or the fact that race tires, it is well established citing other cases that competition among businesses to serve as an exclusive supplier should be encouraged. Now if it is either a de facto or it wasn't a de juri exclusive agreement, there was no exclusive at all. They could be terminated by the OEMs at any time. And the penalty, if they didn't reach the targets for share penetration, was they didn't get the rebates. It wasn't, it didn't say anywhere in there. We will cut you off with transmissions. Now with respect to de facto exclusivity, the only thing that made them attractive to the OEMs was the price and the discounts. So we're talking specifically about discounting prices. With respect to whether we're talking about two different cases, we're not talking about two different cases. The plaintiffs want, plaintiffs want to call it exclusive dealing because they can't go anywhere near a price case. Because if they go near a price case, they didn't even try to put on evidence of the price cost standard. As far as the pages is concerned, that was, as you know, a bundling case that would involve totally different facts. And other circumstances where the rival could not compete for with respect to one of the products. I'm going to end on damages. The Duramus damaged testimony in the first instance was based upon a one-page business plan. He didn't know whether it was the final or a draft

. There was never any evidence that was actual retaliation or specific threats of you don't do this. Eaton is going to quit selling transmissions. That doesn't make any sense. And they never did and they never would have. They never retaliated. The problem that the plaintiffs face is that they did not want to reduce their prices. With respect to the question of whether these agreements were exclusive. As I cited from page 9 and 10 of the joint appendix, these are the words of the district judge. The long-term agreements were not, quote, were not exclusive. Each customer remained free to buy these transmissions from other suppliers, including ZFM. The incentives offered by Eaton were what each customer wanted. Now that's very much like race tire. The competitor and race tire could have competed and did compete with respect to these exclusive arrangements. And sometimes succeeded and sometimes didn't. And the fact that they were exclusive, whether it's the jury or the fact that race tires, it is well established citing other cases that competition among businesses to serve as an exclusive supplier should be encouraged. Now if it is either a de facto or it wasn't a de juri exclusive agreement, there was no exclusive at all. They could be terminated by the OEMs at any time. And the penalty, if they didn't reach the targets for share penetration, was they didn't get the rebates. It wasn't, it didn't say anywhere in there. We will cut you off with transmissions. Now with respect to de facto exclusivity, the only thing that made them attractive to the OEMs was the price and the discounts. So we're talking specifically about discounting prices. With respect to whether we're talking about two different cases, we're not talking about two different cases. The plaintiffs want, plaintiffs want to call it exclusive dealing because they can't go anywhere near a price case. Because if they go near a price case, they didn't even try to put on evidence of the price cost standard. As far as the pages is concerned, that was, as you know, a bundling case that would involve totally different facts. And other circumstances where the rival could not compete for with respect to one of the products. I'm going to end on damages. The Duramus damaged testimony in the first instance was based upon a one-page business plan. He didn't know whether it was the final or a draft. He didn't know who wrote it. He didn't test the factual assumptions in the SBP. And let the judge finally throw up her hands and said, this is on page 147 of the Joint Appendix. I frankly find his report, the longest, densest, most confusing report I've ever had to deal with in my 18 years on the bench. Now the judge was extremely conscientious with looking at whether the tests under 702, 703 were talking about using reliable testimony. That shouldn't have been a surprise to anybody if you want to qualify an expert. The material upon which the expert purported the basis testimony was not reliable. He didn't even know who wrote it. Now with respect to the bifurcation point, should... It's one of the standards that we agree with your initials. That's correct. That's correct. And I'm just saying that if you... on the unlikely possibility that you disagree with us on that. What happens with respect to... certainly... Pardon me? The math is going to solve how to deal with the specific... Yes, yes, I fully understand that. It's happened to me. With respect to

. He didn't know who wrote it. He didn't test the factual assumptions in the SBP. And let the judge finally throw up her hands and said, this is on page 147 of the Joint Appendix. I frankly find his report, the longest, densest, most confusing report I've ever had to deal with in my 18 years on the bench. Now the judge was extremely conscientious with looking at whether the tests under 702, 703 were talking about using reliable testimony. That shouldn't have been a surprise to anybody if you want to qualify an expert. The material upon which the expert purported the basis testimony was not reliable. He didn't even know who wrote it. Now with respect to the bifurcation point, should... It's one of the standards that we agree with your initials. That's correct. That's correct. And I'm just saying that if you... on the unlikely possibility that you disagree with us on that. What happens with respect to... certainly... Pardon me? The math is going to solve how to deal with the specific... Yes, yes, I fully understand that. It's happened to me. With respect to... then you might go to the damage point. The judge was perfectly right with respect to both the bonafides and the standards under the rules of evidence. With respect to this evidence, with respect to this witnesses understanding of what he was talking about with respect to this. As far as reopening the case was concerned, the judge went to great length. She insisted on the discovery order and the order of trial and the preparation. She specifically said, Now if I do that furthermore, you had the alternatives damaged theories before you didn't do them. We talked about this in limony. The discovery period is passed. I'd have to re-open discovery. I'd have to do expert reports. In other words, she was managing a difficult case responsibly and sensibly. We're going to laugh better if she thought to do that before the trial started. Well, there's always a way that you can find every district judge certainly knows that the procedure, especially in an involved complex case like this, can have ways in which you could look back and say it's done better, but she gave them every opportunity. At the end of the day, this case is about above cost discounts. There's no evidence that there's any discounting below cost, no evidence of predatory prices, no evidence of possibility of recruitment. We're talking about powerful competitors in the marketplace. Thank you, Your Honor.

Theodore also on behalf of the appellant and across the billy, I would like to reserve seven minutes for the Court, please. Now please, the Court. Plan of ska not escape the fact that this case is all about reducing prices. The injunction that the Court below issued tells it all. The injunction prohibits discounts relative to market penetration, linked to market penetration. That is what the Court below decided. And planives can't prevail in this case because Eaton's prices were never below Eaton's costs. That was never disputed and never proved otherwise. The plain, simple and unavoidable fact is that the plaintiffs failed in this business because they could not or would not meet Eaton's above-cost prices. That's exactly a... It is meaningless. It is meaningless. In fact, the judge said so at the point of granting the injunction. The judge said she said that this injunction is not going to do the plaintiffs any good. They will have no direct benefit of this. But I'm going to go ahead and issue the injunction because of the possibility that they might someday re-enter the market. But there was no evidence that would support the proposition that was any real probability to enter the market. So, you know, on the point is... There might be some benefit to the consumer, but that's not the standard for the... I don't think there would be a benefit to the consumer as a matter of fact judge Fisher because what that conduct that we're talking about here is the reduction of prices. So, if you provide an injunction that is as broad as this which says, you are prohibited from linking discounts to market penetration goals or anything like that, you're telling the defendant, you can't reduce prices which the consumers wanted, the purchasers wanted. So, not only would this judgment... this judgment would affect the consumers and that's the way I was answering your question, but it would not benefit the consumers. It would certainly not benefit the plaintiffs in this case and the injunction is therefore unjustifiable. But with respect to liability... Why are you on that question? The answer was exactly the... You also led to the standard question. There is a standing question. There is an article three question. There is just simply not under these circumstances no article three standing to issue this injunction. There is no irreparable injury. There is no concrete specific imminent risk of harm to the plaintiffs. And therefore, there's an article three question in addition to the anti-trust standing question. This... the very language that the judge used, in the first sentence by saying that there's no possibility... There's very little possibility that there would be any direct benefit to the plaintiffs as a result of this injunction answers the question. That injunction cannot be sustained on the basis of that factual record. Now, we also think it is very, very important in this case that the motion for a judgment as a matter of law should have been granted. Under this court's decisions, under the decisions in many circuit courts that have considered comparable facts. There is no justification for proceeding with an anti-trust complaint. The Supreme Court is virtually unanimous on very, very few things, as we know. But on this issue in the Warehouse of Case, in the language that all the court agreed upon in the link line case, going back to the Brook Group case, lowering prices is a good thing for consumers. And when people are in competition and they want to develop a mechanism so that they can sell as many of their products as possible, by linking their ambition to the reduction of prices, that is a good thing. And as the Supreme Court has said, it is very damaging, as long as those prices are not predatory, as long as they're above cost, the Supreme Court has said, if it's a pricing case, there's no question that this is a pricing case. That's what the judges and junctions did specify. And that's what the district judge said, the hammer was in this case. It's all about pricing. The plaintiff's definitely attempted to call it something other than what it was. And they wanted to avoid the law that I was talking about. But the fact of the case, the guts of the case, the gist of the case, the core of the case, is what was the hammer, that's what the district judge called it, was the offer of reducing prices if you purchase a certain percentage of your needs from this point. But you can not only acknowledge the fairness of your answers, it wasn't exclusive. It doesn't really matter. You could even call it an exclusive dealing case, the plaintiffs try to do that. But as this court specifically said in the race tire case, that's not a violation of the antitrust laws. A competitor is entitled to say, I would like to get all of the business. But this clearly was not an exclusive dealing case because the original equipment manufacturers, the customers for these products, could purchase from the plaintiffs anytime they wanted. Nothing in these agreements. And I think you'll see this on page, the Joint Appendix 9 and 10, the judge specifically said, these were not exclusive dealing arrangements because at all times, the purchasers of these products, the consumers of these products, at all times, could buy from the plaintiffs. And at all times, the plaintiffs could sell their products for the original equipment manufacturers. So there was no exclusivity what there was was an incentive to buy from the most efficient competitor. Yes, I am. I'm not using the product as a rule of the truck. I've meant it in terms of the consumer of this product initially. But as a matter of fact, the purchasers of the trucks with these equipment in them were the ultimate beneficiaries because the record demonstrates that eaten insisted that its reduction in prices be passed on to those ultimate consumers. At all times, they could. That's correct. That is a very important distinction. And I was going to make that if I had time that they did not have to give that choice. I mean, ultimately, the builders of the trucks wanted, because the market was collapsing, to make it as efficient as possible with respect to the sales of those. I was wondering, I was wondering if you were not going to buy from this case. I was wondering whether the only purchases of trucks that were right simply indicated purchase of the product was not going to be passed on to the consumer. That's absolutely true. The record is very clear that not only were the original equipment manufacturers sophisticated, powerful, and no pushovers. If this was something that was forcing something down their throat, they wouldn't have accepted it. And the purchasers of the trucks are generally sophisticated, large purchasers of trucks, and they were doing the best that they could, and they were benefiting from this process. So what the Supreme Court has said in connection with this, not only are low prices advantageous, but we don't want to penalize or put people in a situation where they can't figure out what the rule is with respect to the pricing of their products. In the most recent decision, I think, was the link line case, the Chief Justice speaking through the court, said, that lawyers have to be able to explain these things to their client. They have to be clear rules. They have to be clear rules because we have to know what damage has been done by the allegedly improper practice. That's one reason. Secondly, because we don't want to discourage low prices. And thirdly, we do not want to have inefficient competitors to use the antitrust laws as a protection so that they can raise prices above efficient levels. Now, in this situation, the records repeat with evidence that the plaintiffs in this case could have reduced their prices. That's with respect to these prices, but was doing the best it could to capture as much of the market as they put. Understandably, that's what we expect competitors to do. The plaintiffs in this case were simply not willing to reduce their prices to be at a competitive level. But the judge must judge the jury's selling the return of a lot of both. What did they have to propose? The jury is the one that we had to say, the plaintiff proved this. Yes, and the jury instructions didn't focus on price cost at all. That never got to the jury. It shouldn't have gotten to the jury because the price cost test, the Supreme Court says, if you're pricing above cost, and unless the plaintiffs proves a dangerous probability that those costs will be recovered later on in higher prices, this case never should have gone to the jury. What if the jury wasn't in the jury something and had it applied to the price? Yes, and what the jury focused on was that question of the exclusivity that you were talking about. And the jury instruction basically said, if you find that the OEMs, the original equipment manufacturers were committed to buy a substantial share of the jury, and the original equipment manufacturers were committed to buy a substantial share of the market from the defendants, that was a de facto exclusive arrangement. That in and of itself would not have satisfied the antitrust laws as the race, race, tire case makes clear. We don't challenge the instruction because the instruction doesn't instruct with respect to a standard that violates the antitrust laws. This court in the race tire case specifically said, exclusive arrangements are even to be encouraged because you want competitors to go out and try to do this. But the fact is, with respect, is certainly these prices were sufficiently attractive that the OEMs wanted to purchase from the attractive competitor. You are not going to solve the well. You aren't challenging the instructions. So in a sense, the ability to mad at the question of sanity is what this case could get to the truth? This case should have been called out. Frecisely. And that's what happened. That's correct. And then the Supreme Court in this area has several times said, this is a question of law, the Supreme Court has done it on motions to dismiss. And JMLO, JMO, L motions, which is what should have happened here. The fact is that you cannot violate the antitrust laws. If you're pricing above cost and you're not and you don't demonstrate if you're the plaintiffs, that there's a dangerous probability of recoupment of those costs, this case did not even come close to meeting those standards. It should have been this. I know I don't think so. I think it unquestionably is a pricing case and you can look at the injunction because that's the only thing the judge focused on. But if it isn't the pricing case, it is something in the ether as making your opportunities to your customers sufficiently attractive that they only do business with you. That's why the plaintiffs kept calling an an exclusive dealing case. But the contracts on their face were not exclusive. We do have more than an injunction. We have the record case. You who are just as mad law and we have the jury instruction in the case. We have a lot more. Even if there is a theme fact in the injunction, that wouldn't be very far when it's thought it would be the injunction that it doesn't appear. It became part of the reconsideration motion. One good argument is that the injunction isn't a tailor. It doesn't address the issue of the rain vision. Well, my point was that's what the judge thought the case was. That's what the plaintiffs lawyers said when they argued in favor of the admissibility of their expert witness. The expert witness referred to it as the incentive which was driving the whole thing. The judge referred to the pricing as the hammer. So what I'm saying, Your Honor, is this unquestionably was a pricing case because that was the only thing that provided the incentive. That was the core of what provided the incentive. And the fact that there was no damage here because the other information about this or the expert opposed to the party was not allowed. What kind of ridiculous, what would happen in that context? Well, I would say that I think I understood your question. If you determined not to overturn the jury verdict as that was. And if you left the damage resolution in place, which I think the evidence and police supports this witness didn't know what he was doing with respect to damages and eliminated the injunction. We would be, we'd accept that outcome. But I think as a matter of law, it's from this court with respect to antitrust. It would be a very unsatisfactory because it would be send the message that you cannot induce consumer loyalty with price reductions. And that's the antitrust for the antitrust. Okay, Mr. Wilson, thank you very much. Thank you, Your Honor. J. Fast down for the plaintiffs, the F. Maritura and Maritura transmission. Let's spend a few minutes on the actual record here. And one point quickly on the injunction. As you all will recall, we are cross appealing on the injunction because the district court wouldn't listen to our position on the scope of injunction. I don't think that the scope of the injunction indicates that this records me or the case, especially when you look at the district court's decision on the judgment as a matter of law motion that he made, which the district court rejected. And the district court there recognizes that there is much more here beyond these limits. There. I thought this was high enough for me, but sometimes I have that issue. So that when you look at the J. O. Millell decision, you see the district court itself recognized this case as much more than the market share rebate, Teton talks about, and continually is the only thing it wants to talk about. And the important thing here is that no matter how it tries, Eaten can't turn this into a case of an inefficient competitor that was defeated by the workings of pricing competition. In particular, at the Joint Appendix pages, 1495 to 96, Eaten's own economist, Professor Murphy, conceded a trial that it's reasonable to consider plaintiffs and equally efficient competitor of Eaten. That's a 1495 to 96. And in fact, plaintiffs were in a key way a more efficient competitor than Eaten because they had the advanced two pedal freedom line product. And that was in a category, the automated mechanicals that both plaintiffs and Eaten recognized was about to grow dramatically because of its benefits, and yet Eaten wasn't going to have an analog to the freedom line for years. Equally, Eaten can avoid their recognition talking about the Supreme Court cases that it didn't win a battle of consumer choice by offering consumers a better deal. What it did was use its monopoly power over the OEMs to deprive the consumers, the fleets, the mom and pop truck buyers, to deprive them of their traditional choice of transmissions and block them from access to a better product, the freedom line. Now, if you read Eaten's briefs, as we all did, it repeatedly calls its rebates quote, modest, having seven times a two briefs that says that. So it must, it must mean that. But then, its Professor Murphy made another major concession. This is the Dependix 1497, the very next page, where he testified that quote, such small, such small rebates wouldn't exclude a competitor. In Planned Of Scores, we're a competitor that had a better product, and as Eaten conceded a very formidable partner, ZF Friedrichshaven. So Eaten didn't stop. Eaten just wants to talk about rebates, but it didn't stop, believe in its market share rebates. In contrast to the Warehazard case, Eaten Science, they talked about quote, unilateral pricing measures, and that's a page 322 of Warehazard. Eaten used its monopoly power to engage in an array of non-unilateral, concerted action with the OEABS, that even it can't claim just represents price competition, or even represents price competition at all. When Eaten just refuses in its opening brief, and its reply brief, and again an argument, it refuses to even acknowledge the existence of these facts. So this is not a case where a seller goes to a customer and say, if you voluntarily decide to buy more from me, I will give you a better price. But this case is about, and why we call it exclusive dealing. Eaten was saying, I'm a monopolist, and you, for OEMs, you know it. And you will, not may, you will buy all of you virtually everything from me, and you will do so for five to seven to ten years until any trace of any significant competition is long gone. And that's why not only do we submit that our claims are appropriate under the cases we've cited, we submit that our claims are off-force you are to the claims in the cases that we've cited like the end-sply and the pages. And importantly here in contrast to three-amid hook group and dense ply and I'm sorry three-amid lipages and the dense ply and rather Williams in a hook group, Eaten didn't have the most advanced product. It was in a position of being a long time monopolist that was about to be leapfried by a new and very strong zf competitor, but it did have monopoly power, which it doesn't contest on appeal. And this wasn't just the monopoly power over transparent tape in the caverns of a Walmart or a target, obviously not good for Walmart, but hardly deadly to its business. Here Eaten had a chokehold on the very business of the OEM truck builders. If you didn't have a transmission, the one you wanted, when you needed it at a competitive price, you couldn't make a sale. And you were already in separate cases. This year old's, our use, whatever tried to get into the greed that you call this exclusive deal in case of that, I think he sort of agreed. Well, he argues no matter what you call this, if there has to be a price cost analysis, the Supreme Court has said what you're building costs and what you're pricing predatory, if you can't find it. Why is he not correct? Because what the Supreme Court is talking about in a brew group in wirehousers are pricing practices, as wirehousers called it after brew group unilateral pricing measures. And that's not this, because what we had here was not as they said the if that, think of brew group. In brew group you had someone with 11 or 12%, so they weren't a monopolist. They went to their wholesalers and said, look, we'll offer you a better price if you buy more. They had discounts and volume rebates. That's not what happened here, because in fact, Eaton's argument plays right into this. Eaton says that at least for a while our market share with the OEMs went up. Well, it went up because people wanted the freedom line because of all its advantages, even though the freedom line was a much higher price product than basic manual transmission, people wanted that product. So he didn't stop with saying, gee, if you buy more from me, even if you buy 92% from me, I'll give you a better price. But that's it. What Eaton said is, you will buy this from me. And that's why it went to the whole array of conduct. Well, but that was a concern, your honor, of the OEMs. And you see it fear of retaliation. Maybe I won't give my deliveries on time. Maybe I won't get the products I want. Maybe I won't give the same prices, my competitors. You see the fear of the OEMs. For example, Volvo, Volvo was an OEM, also made a small percentage of its own transmissions. Eaton's power was so strong that it forced Volvo to agree that it would price its own transmissions, non-competitively to eat transmissions, eat Volvo's own trucks, the Volvo's own competitors. They forced them into this price fixing agreement that Volvo said, okay, because I need you so much, I will disadvantage my own products in favor of your products. Eaton went to PACAR. And PACAR, it said, this is with respect to the performance transmissions, and it's during appendix 26, 47 to 48. Eaton said, don't you forget that you have a big percentage of your sales are what they call performance trucks. They're not just on off road construction trucks, logging trucks, those kinds of things. Not only am I a monopolist overall, but I am the only source of supply for those products. And that's the difference here, is that Eaton didn't just let it be as to whether the OEMs decided to buy more or not more. They came in and said, well, we're good to do. And there's one more point, and I think you're right or inverted to this earlier, is the importance of the truck buyers. Historically, this market ran on what was called a spec basis, so that term. Meaning the truck buyers could specify the components of their truck. The trucks, you had the data book, as you can say, I want this transmission and these brakes and these axles and these seats and so forth. And what Eaton did was it conspired with the OEMs. It used its muscle over the OEMs to block the truck buyers choice. Let's talk about things that we'll see whether we think this is price-couple. Well, that's how the trucks work. That was exactly how the trucks were until Eaton said, now OEMs, we're going to enter into a partnership where you're going to block visibility, block accessibility of the truck buyers to competitive products. That was exactly how it was until Eaton said, no more because they couldn't deal with the freedom lot. Now, they wanted only placement. For example, Mr. Client's testimony, at Appendix 261-273, explains how the freedom lot, which was a product Eaton didn't have an analog for, disappeared from the OEM data books because Eaton said, I want that out. Now, because we just needed a buyer and then said, we're going to get our truck and do an actual, what do you want freedom lot transmission? I thought it was a free lot of transmission. At a higher price because they were charging price penalties for transmissions that weren't standard and that I don't remember. See, it's a whole combination of factors. The freedom line would be installed by the truck builder in the truck. I don't think there's anything in the record about truck buyers just buying the transmissions directly and installing them. What happened was Eaton closed off. There were four places we could sell to, four OEMs and they closed off every one of them from five to seven to ten years and they said, what we will do is we will want you to take our product out of the data book. Now, how is that possibly pro-consumer? I needn't, doesn't even have an analog. It's not a preference. It's just we want you to disappear. And then we will have them imposed price penalties, resale price penalties so that if somebody comes in and says, I like that freedom lot. You have to say, you OEM have to say that I'm going to charge you more and they were penalties. Note that about it. Council says that Eaton wanted these rebates passed along. There is no evidence of that. In fact, you can look at every one of those LTAs, there is nothing about passing along these rebates and we cited in our brief evidence showing that Eaton knew, for example, for Freightliner, that it was not being passed along. They say that our rebates are not getting down to the field level. So these were penalties that were imposed not only on us, by the way, but also on Volvo, as they said. In Volvo, they penalized our transmissions. Then they... Yes. Check. I think in the... Yes. ...the time to space in the parallel press. But the parallel press... ...that the Supreme Court has cautioned us, not being found to have been on this with respect of courts and curries deciding on a law cost. Price like you and the competitive violation of the press and the public. What they're saying with Eaton was essentially in law. We have a press for our agency transmission. But, you know, who are you by? Who are you by, particularly over a certain percentage of your criminal transmissions within the field? Who can be over a certain percentage of your criminal transmissions? But, nowhere in the record does the better say this for their cost. Let me answer that in three ways, by my way. Okay. And I guess my question is, you know, why is that... ...why is that in conflict with the public, especially for us to evaluate these cases? And why is that a violation of the press? Because it's not this case. Anyway, you, your honor, says we're talking about different cases. They're absolutely right. In Eden's opening brief, they said nothing about all this other conduct that taking us out of the data book, ...the taking trucks with our transmissions out of sales packages and sales promotions, ...refusals to quote residual values on trucks with our transmissions, ...resail price penalties. They said nothing about that. And we said at the beginning of our statement of facts, ...basically, we're sorry we'd have to spend a lot of time on this, ...because they didn't tell you what this case is about. And then if you look at their reply brief, they still don't deal with data book exclusion, ...resail price penalties, at all the rest on and on, including, for example, ...PACAR, PACAR said, I'm going to impose a limit on the incentives that we could provide ...there are truck buyers. How is any of that pro-consumer? Yes. ...the transfer-based point. You could have a low cost price and steal the attack credit, is that right? When, if the case is only about, as the Supreme Court calls it, ...as Eden calls it, it's repricing practices, ...as warehouseer talks about it, unilateral pricing measures. If all you had were unilateral pricing measures, ...and their pricing were above cost in all respects, ...then that would be one case, but it's not this case. Right, right. And so it is possible to have a low cost price and steal, have a knowledge. Of course. I know it's good to ask, implicit, but I think that's where you start. Absolutely, because here you see, when Professor Murphy, when Eden says that ...their rebates were modest, were such small rebates, ...but that's telling you is one or two things. One is, they didn't want to sacrifice the current profitability by giving big discounts. Number two is what they're saying is, they realized it wouldn't work, ...because they didn't have the better product. In Brookroof, Brown Williams was attacked by a low-price competitor, ...the generic cigarettes. In the pages, 3M was attacked by a low-price competitor, the private label, ...the guy, the pages. So if you're attacked by a low-quality, low-price competitor, ...you may say, okay, well, I'll respond by lowering my prices. But Eden was in this position. This is a situation that none of Eden's cases, in fact none of our cases, ...when the monopolist didn't have the best product, ...and so lowering prices as Professor Murphy said, this is 1497. He has still had a trial. This would not have defeated the plaintiffs. Plaintiffs were driven out of the market as two of the OEMs, ...specifically and separately, testified, stated. In retrospect, Eden's conduct killed first ZF Maritory, ...the joint venture and the freedom line. And then after three more years of trying, the Maritory transmission. So I think the short of it is, it's just not the case, ...and Eden's counsel again gets up at oral argument and says, ...this is just about pricing. Still doesn't deal with all the other conduct that they needed to do. And what they did was they reached to the OEM and grabbed them by the throat ...and said, you need me. I'm the monopolist. And I'm 100% of the performance transmissions. And I want you to block the truck buyers, the consumers, ...who may be sophisticated, may not be sophisticated. We didn't hear a record say that, how many are sophisticated, ...and how many are not. We wanted to block them from their traditional choice of transmissions. And we wanted to block them, even from the visibility of the better product, ...the freedom line that Eden didn't have and didn't have for years. All right, Mr. Fass, now let me direct you to another one. Sure. I've been supporting your important work in the past. Just talking about families. Absolutely. You were able to get the corn allowed with Mr. Durantis's testimony on liability. But you could have viewed from offering Mr. Durantis's testimony on the damages ...and denied the motion for recidivation and emotion for better treatment. Why was this important? It was wrong. All the way down the line on those points, your honor. Number one, on the original calculations of Dr. Durantis. Two reasons. He relied on a document called the, there's that in a document called the November 2000 Strategic Business Plan of ZS Maritore. That document was admitted into evidence, at trial, with no objection. And all the cases show the advisory committee note show, the language of 703 shows, that that alone is enough for the expert to be able to rely on it. That was the old fashion way, I think, how the expert would rely on it. The expert could rely on admissible evidence. 703 went and brought in the ability of an expert to rely on information by saying you can also rely on information that's reasonably reliable by experts. But the core basis, and all the cases of Portis Eden doesn't cite a single case to the contrary. And it makes sense because if the information is reliable enough for me to show it to the jury, to read it to the jury, to argue it to the jury, then there's no reason it's not good enough for Dr. Durantis to rely on it for his calculations. Now, Eden says, well, there are two phases of trial here. It doesn't say why that matters. The strategic business plan is already indefinite. And Eden identifies no objection, a maritalia's objection, that it would have made if damages were part of the first trial that it couldn't have made. Otherwise. So just as a matter of law, the district court was wrong, the admissibility establishes usability by Dr. Durantis. But of course, there's more, and then we go to the reliability of the expert's proc. And Eden has no answer to this court's declaration of pages that internal projections for future growth are inappropriate basis for estimating lost profits. And that makes a lot of sense when you look at the evidence here in terms of indicia, of reliability. Here we have, as the record shows, experienced business people who are doing these plans for purposes of deciding how to manage their business. As Mr. Lewis testified, we do plan to decide how much to spend, whom to hire, what products to develop. There's no reason to think that they were kidding themselves, especially since this plan was six years before the litigation. So even Eden does argue that there was that litigation paint to the plan. And in fact, we know that they were being very careful here because the document that Dr. Durantis used. The projections there had already been reduced twice because of recent adverse market developments. And the ZF Maritaur Board said, look, we don't want you to be over optimistic. We want to make sure that you're not projecting too much. And therefore, we're mismanaging our business, we're spending too much money, or whatever. And we also know that Eden's own projections as to the growth of the automated mechanical segment that the Freedom Line was part of were enormous. They expected, they said in 2000 to 2001 that by 2004 and 2005, they expected that segment to be up to half the sales. So that fully supported our projections as to the potential growth of the Freedom Line. And then we had Dr. Durantis who tested and retested. What about your argument that you should analyze the demand? Absolutely, Your Honor. Under the language of Peoli, as soon as the district court's this downward decision came out, we said, well, first of all, we were surprised by 703, which Eden had incited in the whole Daubert proceeding. Let me say, look, as an alternative, if you don't like the data he used, but you do approve the methodology, which the district court did both in the Daubert decision and then in the decision on the motion for clarification later said, I wasn't rejecting the methodology. Then we'll put in new data, not new data, data that was already in his report and supporting materials. But we'll put it in instead of the strategic visits plan data and we should be on our way. Your Honor, I think that under Peoli and PennyPak, what this court has been teaching is, you can imagine, we can all imagine some egregious circumstances. But that wasn't the case here, especially where we weren't even on notice of a 703 exclusion possibility. But the district court said, because I'm not going to give you another opportunity to modify your calculations. But in reality, what the district court wouldn't do is give us one opportunity to modify our calculations. It was one and done based on what Peoli and PennyPak talked about as critical evidence as we've discussed. Absent his ability to testify, the district court said we have no damages, which is, of course, very act critical to us and critical to the public interest and the enforcement of the antitrust laws. And given the bifurcation, or we said to the district court, please let's work out the damages issue first. And then let's go to trial. And first the district court was amenable to that and then changed its mind and said, no, let's do a bifurcated trial. And maybe we'll never have to deal with damages. But having bifurcated, there was certainly no pressure. And the standard of PennyPak is incurable prejudice to the defendant. There was no prejudice, much less incurable prejudice, that now we've had almost three years since we said, okay, here are our alternative calculations. There's no damages, phased trial, scheduled. So there's no prejudice, much less incurable prejudice. Thank you. I will try to be efficient. We've heard that the plaintiffs were an equally efficient competitor. They may have been an equally efficient competitor, but as I said at the very beginning, they were either unable or unwilling to meet the price reductions. So if they had the capacity to do it, to reduce their prices, they did not do that. We just heard that these rebates were not modest. They ranged from one fourth of 1% up to 3%. Now, you could argue about whether they were modest or not, and they were accumulative based upon the overall demand for the products. But they were market share discounts based upon what the OEMs want. The record is clear that what was happening at that point in time is that the market was falling apart. The demand for trucks was cut in half during this period of time. So the OEMs themselves didn't want volume discounts. They specifically wanted to know that they would be able to meet the standard for the rebates. So the OEMs were not only a market share discount, but also a market share discount. That benefited them. Also, you're on it. That benefits the smaller competitor, the smaller OEM. You might not be able to match the larger OEMs with respect to total sales volume. But they can always match a market share discount. Fear of retaliation. I think that we heard a lot about that just a moment ago. These were powerful, original, equipment manufacturers. They had the power to determine whether they would accept these arrangements or not. Two of them made their own transmissions. With respect to retaliation itself, we've heard something about that, but it never happened. There was never any evidence that was actual retaliation or specific threats of you don't do this. Eaton is going to quit selling transmissions. That doesn't make any sense. And they never did and they never would have. They never retaliated. The problem that the plaintiffs face is that they did not want to reduce their prices. With respect to the question of whether these agreements were exclusive. As I cited from page 9 and 10 of the joint appendix, these are the words of the district judge. The long-term agreements were not, quote, were not exclusive. Each customer remained free to buy these transmissions from other suppliers, including ZFM. The incentives offered by Eaton were what each customer wanted. Now that's very much like race tire. The competitor and race tire could have competed and did compete with respect to these exclusive arrangements. And sometimes succeeded and sometimes didn't. And the fact that they were exclusive, whether it's the jury or the fact that race tires, it is well established citing other cases that competition among businesses to serve as an exclusive supplier should be encouraged. Now if it is either a de facto or it wasn't a de juri exclusive agreement, there was no exclusive at all. They could be terminated by the OEMs at any time. And the penalty, if they didn't reach the targets for share penetration, was they didn't get the rebates. It wasn't, it didn't say anywhere in there. We will cut you off with transmissions. Now with respect to de facto exclusivity, the only thing that made them attractive to the OEMs was the price and the discounts. So we're talking specifically about discounting prices. With respect to whether we're talking about two different cases, we're not talking about two different cases. The plaintiffs want, plaintiffs want to call it exclusive dealing because they can't go anywhere near a price case. Because if they go near a price case, they didn't even try to put on evidence of the price cost standard. As far as the pages is concerned, that was, as you know, a bundling case that would involve totally different facts. And other circumstances where the rival could not compete for with respect to one of the products. I'm going to end on damages. The Duramus damaged testimony in the first instance was based upon a one-page business plan. He didn't know whether it was the final or a draft. He didn't know who wrote it. He didn't test the factual assumptions in the SBP. And let the judge finally throw up her hands and said, this is on page 147 of the Joint Appendix. I frankly find his report, the longest, densest, most confusing report I've ever had to deal with in my 18 years on the bench. Now the judge was extremely conscientious with looking at whether the tests under 702, 703 were talking about using reliable testimony. That shouldn't have been a surprise to anybody if you want to qualify an expert. The material upon which the expert purported the basis testimony was not reliable. He didn't even know who wrote it. Now with respect to the bifurcation point, should... It's one of the standards that we agree with your initials. That's correct. That's correct. And I'm just saying that if you... on the unlikely possibility that you disagree with us on that. What happens with respect to... certainly... Pardon me? The math is going to solve how to deal with the specific... Yes, yes, I fully understand that. It's happened to me. With respect to... then you might go to the damage point. The judge was perfectly right with respect to both the bonafides and the standards under the rules of evidence. With respect to this evidence, with respect to this witnesses understanding of what he was talking about with respect to this. As far as reopening the case was concerned, the judge went to great length. She insisted on the discovery order and the order of trial and the preparation. She specifically said, Now if I do that furthermore, you had the alternatives damaged theories before you didn't do them. We talked about this in limony. The discovery period is passed. I'd have to re-open discovery. I'd have to do expert reports. In other words, she was managing a difficult case responsibly and sensibly. We're going to laugh better if she thought to do that before the trial started. Well, there's always a way that you can find every district judge certainly knows that the procedure, especially in an involved complex case like this, can have ways in which you could look back and say it's done better, but she gave them every opportunity. At the end of the day, this case is about above cost discounts. There's no evidence that there's any discounting below cost, no evidence of predatory prices, no evidence of possibility of recruitment. We're talking about powerful competitors in the marketplace. Thank you, Your Honor