WEBVTT 00:00:00.000 --> 00:00:02.839 Good morning. Good morning. Amanda Bond for the 00:00:02.839 --> 00:00:04.839 appellants and I'd like to reserve five minutes 00:00:04.839 --> 00:00:10.539 for a bottle. Okay. In 2019, this court held 00:00:10.539 --> 00:00:13.820 that if plaintiffs proved what we alleged, it 00:00:13.820 --> 00:00:16.660 would be a naked violation of the antitrust laws 00:00:16.660 --> 00:00:19.579 that one with even a rudimentary understanding 00:00:19.579 --> 00:00:23.559 of economics could understand would harm customers. 00:00:24.460 --> 00:00:27.460 Two summers ago, a unanimous jury found that 00:00:27.460 --> 00:00:30.859 we proved just that. and the district court's 00:00:30.859 --> 00:00:33.119 decision to nevertheless grant judgment as a 00:00:33.119 --> 00:00:37.439 matter of law and summarily deny an injunction 00:00:37.439 --> 00:00:40.679 was wrong and should be reversed. I'd first like 00:00:40.679 --> 00:00:44.320 to address the exclusion of Dr. Rascher before 00:00:44.320 --> 00:00:47.780 turning to the exclusion of two of Dr. Zona's 00:00:47.780 --> 00:00:50.640 opinions. First, the unexplained exclusion of 00:00:50.640 --> 00:00:54.039 the NFL tax model and second, the single competitor 00:00:54.039 --> 00:00:57.659 model. and then finally I'll turn to the alternative 00:00:57.659 --> 00:00:59.880 new trial order and the injunctive relief issue. 00:01:00.539 --> 00:01:04.340 Thank you. Beginning with Dr. Rasher, the district 00:01:04.340 --> 00:01:07.340 court committed at least three fundamental legal 00:01:07.340 --> 00:01:10.540 errors and an abuse of discretion in excluding 00:01:10.540 --> 00:01:13.239 the opinions of one of the nation's preeminent 00:01:13.239 --> 00:01:16.719 sports economists whose expertise in the area 00:01:16.719 --> 00:01:20.459 of NCAA sports and the intersection of antitrust 00:01:20.459 --> 00:01:22.640 has been cited by the Supreme Court and this 00:01:22.640 --> 00:01:26.120 court. First, The district court committed a 00:01:26.120 --> 00:01:29.340 legal error under Alaska rent -a -car when he 00:01:29.340 --> 00:01:33.180 excluded a yardstick comparison to top -tier 00:01:33.180 --> 00:01:36.340 college football because of what the court believed 00:01:36.340 --> 00:01:40.620 to be quote significant differences under image 00:01:40.620 --> 00:01:43.659 tech and Say you fee all that is required for 00:01:43.659 --> 00:01:46.739 a reliable yardstick in the first instance is 00:01:46.739 --> 00:01:50.030 reasonable economic similarity And here, there 00:01:50.030 --> 00:01:52.930 can really be no debate that there is reasonable 00:01:52.930 --> 00:01:56.629 economic similarity between NFL football and 00:01:56.629 --> 00:02:00.790 top -tier college games. This court recognized 00:02:00.790 --> 00:02:05.250 the importance of the analogy. The NFL itself 00:02:05.250 --> 00:02:08.770 compared its own telecasting system to that of 00:02:08.770 --> 00:02:11.770 quote, top -tier college football in New Frontier. 00:02:12.409 --> 00:02:15.430 And Dr. Rascher explained why the similarities 00:02:15.430 --> 00:02:19.219 are so important. It is not only the same sport 00:02:19.219 --> 00:02:22.379 played during the same season, but it has the 00:02:22.379 --> 00:02:26.740 SBA though. Correct, they don't. And yet that 00:02:26.740 --> 00:02:29.479 difference was accounted for by Doctor Rasher. 00:02:29.879 --> 00:02:32.800 Doctor Rasher explained, for instance, that he 00:02:32.800 --> 00:02:35.740 would expect in NFL football. The teams would 00:02:35.740 --> 00:02:38.900 continue to pull their over the air rights because. 00:02:39.150 --> 00:02:42.349 they're allowed to do so by the SBA. He provided 00:02:42.349 --> 00:02:45.210 sample schedules in which they would continue 00:02:45.210 --> 00:02:47.150 to do so, and yet there would be competition 00:02:47.150 --> 00:02:49.590 for the paid television rights. And this was 00:02:49.590 --> 00:02:53.150 not merely speculation by Dr. Rasher. This was 00:02:53.150 --> 00:02:56.129 confirmed by the NFL's own new frontier analysis, 00:02:56.689 --> 00:02:59.590 where they explicitly contemplated that even 00:02:59.590 --> 00:03:03.090 if they continued to offer these in -market games 00:03:03.090 --> 00:03:06.879 on CBS and Fox, There was sufficient demand in 00:03:06.879 --> 00:03:09.699 the marketplace for the most popular content 00:03:09.699 --> 00:03:12.520 on television, that all of the out of market 00:03:12.520 --> 00:03:16.319 games would still be picked up on basic cable 00:03:16.319 --> 00:03:19.560 channels. And so this difference was one that 00:03:19.560 --> 00:03:22.819 Dr. Rascher explained. He took into account in 00:03:22.819 --> 00:03:25.740 his analysis. And once he did so under Alaska 00:03:25.740 --> 00:03:29.180 rent -a -car, it was for the jury to decide how 00:03:29.180 --> 00:03:32.120 important that difference was. And perhaps that 00:03:32.120 --> 00:03:35.360 is why the NFL did not raise this so -called 00:03:35.360 --> 00:03:38.659 SBA difference as a reason to exclude the yardstick 00:03:38.659 --> 00:03:41.500 and the district court's order did not either. 00:03:42.439 --> 00:03:45.560 Second, the district court committed a further 00:03:45.560 --> 00:03:50.520 error. requiring Dr. Rasher to project a false 00:03:50.520 --> 00:03:54.300 certainty about the state of affairs that would 00:03:54.300 --> 00:03:57.780 have definitively existed in a hypothetical but 00:03:57.780 --> 00:04:00.800 for world that defendants misconduct prevented 00:04:00.800 --> 00:04:04.719 from happening and in doing so he not only required 00:04:04.719 --> 00:04:08.000 something that the field of economics does not 00:04:08.000 --> 00:04:11.879 require and indeed could not offer but he contradicted 00:04:11.879 --> 00:04:14.969 substantive antitrust law dating back to the 00:04:14.969 --> 00:04:18.149 United States Supreme Court's decisions in Bigelow 00:04:18.149 --> 00:04:21.410 and J. Truett Payne that have recognized repeatedly 00:04:21.410 --> 00:04:25.110 the vagaries of the marketplace usually prevent 00:04:25.110 --> 00:04:27.750 a plaintiff from saying with precision what would 00:04:27.750 --> 00:04:31.129 have happened in the but for world. Here. Dr. 00:04:31.329 --> 00:04:34.850 Rasher explained the core economic features of 00:04:34.850 --> 00:04:37.230 the most likely, but for world miss bond I guess 00:04:37.230 --> 00:04:39.050 with respect I'm trying to understand the limiting 00:04:39.050 --> 00:04:44.310 principle in terms of is every yardstick in Here 00:04:44.310 --> 00:04:50.730 your friends have testimony at trial that The 00:04:50.730 --> 00:04:53.069 networks were not going to play that game that 00:04:53.069 --> 00:04:56.029 they they were not going to That but for world 00:04:56.029 --> 00:04:58.189 could not exist and they were the very people 00:04:58.490 --> 00:05:00.990 on whom the butt for a world was built. What 00:05:00.990 --> 00:05:03.310 do we do with that? I think what we do is we 00:05:03.310 --> 00:05:06.189 say that's a fact question because the jury was 00:05:06.189 --> 00:05:09.769 free to disbelieve the self -interested testimony 00:05:09.769 --> 00:05:13.610 of witnesses from Fox and CBS whom the evidence 00:05:13.610 --> 00:05:16.230 demonstrated were participants in the conspiracy. 00:05:16.629 --> 00:05:19.449 And they could have instead, for instance, credited 00:05:19.449 --> 00:05:23.430 the NFL's own internal analysis that demonstrated 00:05:23.430 --> 00:05:25.509 that all the games would be carried furthermore. 00:05:26.439 --> 00:05:30.300 The networks themselves Fox and CBS insisted 00:05:30.300 --> 00:05:34.860 and received a contractual guarantee That direct 00:05:34.860 --> 00:05:38.360 TV could not put these games on their basic channels 00:05:38.360 --> 00:05:42.399 They had to make Sunday ticket and add on premium 00:05:42.399 --> 00:05:46.040 priced subscription Trial exhibit 750 had Sean 00:05:46.040 --> 00:05:50.439 McManus from CBS stating explicitly The concept 00:05:50.439 --> 00:05:53.699 has always been these packages are sold at a 00:05:53.699 --> 00:05:56.399 premium, thereby limiting distribution, and we 00:05:56.399 --> 00:05:59.240 are concerned. If they are offered for a non 00:05:59.240 --> 00:06:02.439 -premium price or even free, distribution could 00:06:02.439 --> 00:06:05.860 grow significantly. A reasonable juror under 00:06:05.860 --> 00:06:08.480 a Rule 50 standard could have said, you know 00:06:08.480 --> 00:06:13.699 what? I don't think CBS, Fox, the NFL, and DirecTV 00:06:13.699 --> 00:06:17.110 would have gone to such lengths to make a contractual 00:06:17.110 --> 00:06:19.550 requirement that these games couldn't be on basic 00:06:19.550 --> 00:06:22.189 channels unless they all, in fact, thought there 00:06:22.189 --> 00:06:24.529 was a reasonable risk that that would happen, 00:06:24.769 --> 00:06:28.290 but for the restraints. Ms. Bond, back on the 00:06:28.290 --> 00:06:35.089 SBA point, did Dr. Rascher propose any opinion 00:06:35.089 --> 00:06:39.490 that maintained the league -wide pooling arrangement 00:06:39.490 --> 00:06:44.329 that seems to be protected by the SBA? Dr. Rascher... 00:06:44.560 --> 00:06:47.720 testified that he was not challenging the league 00:06:47.720 --> 00:06:50.699 -wide pooling of the over -the -air telecast 00:06:50.699 --> 00:06:53.259 rights. And in fact, he repeatedly stated that 00:06:53.259 --> 00:06:55.879 the league -wide pooling of free over -the -air 00:06:55.879 --> 00:06:59.180 telecast rights was protected, and he would expect 00:06:59.180 --> 00:07:02.240 in the but -for world the teams, if allowed to 00:07:02.240 --> 00:07:05.240 collude, would continue to. The opinions that 00:07:05.240 --> 00:07:08.339 he offered were that in a but -for world, they 00:07:08.339 --> 00:07:11.939 would not have been allowed to also require 100 00:07:11.939 --> 00:07:15.480 % pooling of the team's separate paid telecast 00:07:15.480 --> 00:07:18.360 rights. And in the absence of that restraint, 00:07:18.939 --> 00:07:21.980 we can look at what happened in college football 00:07:21.980 --> 00:07:24.759 when the Supreme Court struck down a similar 00:07:24.759 --> 00:07:28.079 restraint. And within six weeks, these teams 00:07:28.079 --> 00:07:30.860 were able to rearrange their affairs, and the 00:07:30.860 --> 00:07:34.439 output of telecasts shot up dramatically. And 00:07:34.439 --> 00:07:36.899 that's why today, even though college football 00:07:36.899 --> 00:07:40.829 is second in popularity to the NFL, There is 00:07:40.829 --> 00:07:44.170 an overwhelming demand that results in sometimes 00:07:44.170 --> 00:07:47.529 as many as 40 games, 40 college football games 00:07:47.529 --> 00:07:51.350 being shown over the air nationally and on basic 00:07:51.350 --> 00:07:55.069 channels. And his opinion was that there is no 00:07:55.069 --> 00:07:59.829 reason to expect that 13 more popular NFL games 00:07:59.829 --> 00:08:03.029 on Sunday in a similar media market wouldn't 00:08:03.029 --> 00:08:06.550 have channels of distribution that want to reach 00:08:06.550 --> 00:08:10.930 the 35 million avid fans and 70 million total 00:08:10.930 --> 00:08:13.089 fans who are interested in watching these out 00:08:13.089 --> 00:08:16.810 -of -market games. His opinion was a reliable 00:08:16.810 --> 00:08:20.740 application. of economic methodology, assessing 00:08:20.740 --> 00:08:23.600 the overwhelming demand for these games, the 00:08:23.600 --> 00:08:26.839 capacity to show them, and he explained in detail 00:08:26.839 --> 00:08:29.860 why the supposed impediments the NFL pointed 00:08:29.860 --> 00:08:34.059 to could be overcome and would be overcome. Because 00:08:34.059 --> 00:08:37.000 economic bargaining theory predicts that when 00:08:37.000 --> 00:08:40.100 as here production costs are a tiny fraction 00:08:40.100 --> 00:08:43.620 of the profits to be made, the parties will work 00:08:43.620 --> 00:08:47.769 those issues out in their negotiations. Finally, 00:08:48.129 --> 00:08:51.669 the district court committed a third error when 00:08:51.669 --> 00:08:55.230 he excluded other opinions Dr. Rascher offered 00:08:55.230 --> 00:08:58.210 that were independent of college football without 00:08:58.210 --> 00:09:02.149 any reasoning. First, Dr. Rascher offered an 00:09:02.149 --> 00:09:04.710 opinion that there was yet another yardstick. 00:09:05.049 --> 00:09:08.429 The NFL itself sells Sunday ticket in Canada 00:09:08.429 --> 00:09:11.809 where football is similarly popular. Dr. Rascher 00:09:11.809 --> 00:09:15.129 conducted a regression to show that and yet there 00:09:15.129 --> 00:09:17.980 is no exclusivity. And the result of that is 00:09:17.980 --> 00:09:22.279 prices are half as much, $149 on cable and $75 00:09:22.279 --> 00:09:25.299 on streaming. The district court offered no basis 00:09:25.299 --> 00:09:28.320 to exclude that opinion, which would independently 00:09:28.320 --> 00:09:32.220 show fact of injury and ability to quantify damages 00:09:32.220 --> 00:09:36.059 and support the jury's verdict. Second, the district 00:09:36.059 --> 00:09:39.639 court overlooked and did not mention. The fact 00:09:39.639 --> 00:09:43.440 that Dr. Rasher testified for 20 pages of transcript 00:09:43.440 --> 00:09:45.899 before ever getting to college football. This 00:09:45.899 --> 00:09:51.409 is at 7 ER 1122 through 1144. He testified about 00:09:51.409 --> 00:09:54.330 the overwhelming evidence that the conspiracy 00:09:54.330 --> 00:09:57.429 to restrict output was accomplished through the 00:09:57.429 --> 00:10:01.549 explicit mechanism of fixing a quote premium 00:10:01.549 --> 00:10:04.389 retail price for Sunday ticket. He walked through 00:10:04.389 --> 00:10:08.029 document after document and he explained how 00:10:08.029 --> 00:10:11.240 that evidence demonstrated. That quote, these 00:10:11.240 --> 00:10:14.179 agreements harmed consumers because the price 00:10:14.179 --> 00:10:16.519 was higher than it would have been in a competitive 00:10:16.519 --> 00:10:21.779 situation. That's 7ER 1143 through 44. That opinion, 00:10:22.120 --> 00:10:24.700 that these premium price agreements to restrict 00:10:24.700 --> 00:10:28.139 output harmed every class member, would independently 00:10:28.139 --> 00:10:30.779 support the verdict. And the district court offered 00:10:30.779 --> 00:10:33.440 no basis to exclude it. That is an error under 00:10:33.440 --> 00:10:36.379 this court's higher decision. Unless the court 00:10:36.379 --> 00:10:38.480 has other questions about Dr. Rascher, I'll turn 00:10:38.480 --> 00:10:41.850 to Dr. Zona now. This bond I guess I'd like to 00:10:41.850 --> 00:10:45.090 fast forward in your remaining time to the damages 00:10:45.090 --> 00:10:50.870 question Why isn't we have a couple formulations 00:10:50.870 --> 00:10:54.250 of the standard but but why isn't it? sufficiently 00:10:54.250 --> 00:10:58.669 certain that The jury did what the defendants 00:10:58.669 --> 00:11:02.429 say that it did The question I think isn't what 00:11:02.429 --> 00:11:04.789 they did in terms of what numbers they used. 00:11:04.870 --> 00:11:08.710 It's the further question why they did it Let 00:11:08.710 --> 00:11:12.110 me explain. The jury here reached an estimate 00:11:12.110 --> 00:11:15.169 of the aggregate damage to the class as a whole. 00:11:16.129 --> 00:11:19.250 In reaching that reasonable estimate, they did 00:11:19.250 --> 00:11:24.990 subtract 102 .74 from 294. Why might they have 00:11:24.990 --> 00:11:30.679 done so? Number one, $294 was the price that 00:11:30.679 --> 00:11:33.740 quote millions of class members actually paid, 00:11:34.299 --> 00:11:39.480 according to Dr. Zona, 9ER 1598 through 99. What 00:11:39.480 --> 00:11:44.299 was 102 .74? It was not a price that any class 00:11:44.299 --> 00:11:47.899 member paid, according to Dr. Zona. Instead, 00:11:48.340 --> 00:11:51.789 it was an average. calculated in his model that 00:11:51.789 --> 00:11:54.970 included the paid subscriptions of class members 00:11:54.970 --> 00:11:59.309 and also the free promotional subscriptions that 00:11:59.309 --> 00:12:03.049 non -class members received. The NFL injected 00:12:03.049 --> 00:12:06.149 this number into the trial in opening statement 00:12:06.149 --> 00:12:11.950 at 4ER 546 and 557, where they told the jury 00:12:11.950 --> 00:12:15.330 two things. Number one, they erroneously told 00:12:15.330 --> 00:12:17.950 the jury this was the price the class actually 00:12:17.950 --> 00:12:20.409 paid. a statement they later corrected in closing 00:12:20.409 --> 00:12:24.389 argument. So the question we're asking here under 00:12:24.389 --> 00:12:27.309 our cases is whether it was clearly supported 00:12:27.309 --> 00:12:30.070 by the evidence. I don't think there's any theory 00:12:30.070 --> 00:12:32.070 that it was based on speculation or guesswork. 00:12:32.590 --> 00:12:36.710 There was a calculation, again, maybe not certain, 00:12:36.830 --> 00:12:39.009 but whether it's sufficiently certain. So how 00:12:39.009 --> 00:12:42.769 is it clearly supported or clearly not supported 00:12:42.769 --> 00:12:46.490 by the evidence, right? That's the claim. The 00:12:46.490 --> 00:12:51.570 NFL disclaims that reading and it looks an awful 00:12:51.570 --> 00:12:54.509 lot like the jury assessed damages based on a 00:12:54.509 --> 00:12:57.330 discount rather than a premium. How can we say 00:12:57.330 --> 00:12:59.690 that that is sufficiently supported by the evidence? 00:13:00.169 --> 00:13:02.590 Because the second thing the NFL told the jury 00:13:02.590 --> 00:13:06.169 was that this was a competitive price. that was 00:13:06.169 --> 00:13:08.669 evidence that there was no restraint. And they 00:13:08.669 --> 00:13:11.309 put a finer point on it during the cross -examination 00:13:11.309 --> 00:13:15.029 of Dr. Zona. They said 102 .74 is less than these 00:13:15.029 --> 00:13:18.750 other sports packages. That number was also within 00:13:18.750 --> 00:13:21.450 a range of a number of potential but for prices 00:13:21.450 --> 00:13:25.100 the jury heard. They heard that ESPN wanted to 00:13:25.100 --> 00:13:28.620 offer Sunday ticket for $70, but was rejected 00:13:28.620 --> 00:13:30.919 because that price was too low to protect the 00:13:30.919 --> 00:13:33.360 networks. They heard that in Canada, without 00:13:33.360 --> 00:13:36.179 exclusivity, Sunday ticket could be purchased 00:13:36.179 --> 00:13:40.480 for $75 on streaming or $149 on cable, and in 00:13:40.480 --> 00:13:42.960 deciding amongst them, it would have been perfectly 00:13:42.960 --> 00:13:46.539 rational for them to have said... The NFL itself 00:13:46.539 --> 00:13:50.639 urged that 102 74 a number in the range of all 00:13:50.639 --> 00:13:53.559 of these potential but four prices would be a 00:13:53.559 --> 00:13:56.919 competitive price and therefore the difference 00:13:56.919 --> 00:14:00.720 between 294 what millions of class members paid 00:14:00.720 --> 00:14:05.500 and 102 74 a number the NFL itself has urged 00:14:05.500 --> 00:14:08.279 repeatedly would be a competitive price is an 00:14:08.279 --> 00:14:11.169 overcharge They had evidence in the record including 00:14:11.169 --> 00:14:13.710 dr. Rasher's testimony, but also knew frontier 00:14:13.710 --> 00:14:17.210 that would have allowed them to award up to five 00:14:17.210 --> 00:14:19.629 point six billion in damages to the residential 00:14:19.629 --> 00:14:23.710 class and if in coming to a consensus About a 00:14:23.710 --> 00:14:26.210 damages number they credited the NFL's arguments 00:14:26.210 --> 00:14:29.350 to discount the damages down to that difference 00:14:29.350 --> 00:14:32.490 between the price millions paid and a but for 00:14:32.490 --> 00:14:35.509 price that was within a range of other possibilities 00:14:35.509 --> 00:14:38.980 and the NFL conceded would be a competitive that 00:14:38.980 --> 00:14:41.799 is a completely rational basis for the jury's 00:14:41.799 --> 00:14:44.860 award supported by the evidence. Unless the court 00:14:44.860 --> 00:14:47.279 has other questions, I'd like to just mention 00:14:47.279 --> 00:14:51.240 the injunction, much be reversed. The district 00:14:51.240 --> 00:14:54.259 court denied an injunction summarily, not only 00:14:54.259 --> 00:14:56.919 without a hearing, but without offering any reasoning 00:14:56.919 --> 00:15:00.940 whatsoever. Here, the violation is continuing. 00:15:01.179 --> 00:15:03.340 The defendants continue to pool their telecast 00:15:03.340 --> 00:15:06.460 rights. offer it exclusively through one provider 00:15:06.460 --> 00:15:09.440 at a higher price than ever, subject to the same 00:15:09.440 --> 00:15:13.700 contractual restraints with CBS and Fox to protect 00:15:13.700 --> 00:15:16.419 them from competition by requiring that Sunday 00:15:16.419 --> 00:15:19.059 ticket be an add -on premium subscription. So 00:15:19.059 --> 00:15:20.899 the denial of an injunction must be reversed 00:15:20.899 --> 00:15:22.639 as well. I'll reserve my time. Ms. Bonner, I'm 00:15:22.639 --> 00:15:25.220 sorry. One question just on that. Is there a 00:15:25.220 --> 00:15:28.860 good look to see how the plaintiffs would ask 00:15:28.860 --> 00:15:31.539 a district court to frame such an injunction 00:15:31.539 --> 00:15:35.460 given that the Agreements at issue here are no 00:15:35.460 --> 00:15:38.899 longer in effect Well, I think here the district 00:15:38.899 --> 00:15:41.720 court among other things could look to the continuing 00:15:41.720 --> 00:15:44.779 agreements between the teams the continuing agreements 00:15:44.779 --> 00:15:47.720 with CBS and Fox and as the district court itself 00:15:47.720 --> 00:15:49.700 noted Those aren't the agreements that you challenged 00:15:49.700 --> 00:15:52.820 the question, right? So there's the problem is 00:15:52.820 --> 00:15:56.220 the agreements with the non -broadcast Well the 00:15:56.220 --> 00:15:59.360 agreements the agreements we challenged are an 00:15:59.360 --> 00:16:02.240 interlocking set of agreements that include the 00:16:02.240 --> 00:16:04.860 team's agreements to protect CBS and Fox from 00:16:04.860 --> 00:16:08.080 competition by requiring a premium price to add 00:16:08.080 --> 00:16:10.299 on subscription. As the district court itself 00:16:10.299 --> 00:16:13.600 noted, the fact that a party that's sitting in 00:16:13.600 --> 00:16:16.019 the seat of the premium price to add on subscription 00:16:16.019 --> 00:16:17.980 may have changed doesn't deprive the court of 00:16:17.980 --> 00:16:21.179 the ability to redress the defendant's conduct, 00:16:21.679 --> 00:16:24.759 the pooling, the exclusivity, the premium price 00:16:24.759 --> 00:16:27.210 agreements with the networks that continue. Thank 00:16:27.210 --> 00:16:28.850 you. I'll reserve my thank you. We'll give you 00:16:28.850 --> 00:16:30.610 five minutes on our bottle. Thank you. I appreciate 00:16:30.610 --> 00:16:39.610 it Good morning. Good morning your honors Paul 00:16:39.610 --> 00:16:42.309 Clement for the appellee is cross appellants 00:16:42.309 --> 00:16:44.129 I'm going to endeavor to save two minutes for 00:16:44.129 --> 00:16:46.690 a bottle limited to the cross appeal okay if 00:16:46.690 --> 00:16:50.950 I may Your honors by rule the argument section 00:16:50.950 --> 00:16:53.090 of appellate briefs must start with the standard 00:16:53.090 --> 00:16:56.029 of review And for good reason, as in many cases, 00:16:56.190 --> 00:16:58.690 including this one, the standard of review goes 00:16:58.690 --> 00:17:01.669 a long way to determining the outcome. Here, 00:17:01.850 --> 00:17:04.450 most of the issues on this appeal, starting with 00:17:04.450 --> 00:17:06.650 the decision to exclude plaintiffs' experts, 00:17:07.130 --> 00:17:09.549 are governed by an abusive discretion standard, 00:17:09.950 --> 00:17:11.769 reflecting the fact that no appellate record 00:17:11.769 --> 00:17:14.529 can replicate the district court's familiarity 00:17:14.529 --> 00:17:16.930 with the case and the difficulties each side 00:17:16.930 --> 00:17:21.279 in the case faced. Here, Judge Gutierrez oversaw 00:17:21.279 --> 00:17:24.359 a nearly three -week trial and years of pretrial 00:17:24.359 --> 00:17:27.079 skirmishing. He understood better than anyone 00:17:27.079 --> 00:17:29.920 that the plaintiffs had a very specific challenge 00:17:29.920 --> 00:17:32.460 here. They not only needed to show an antitrust 00:17:32.460 --> 00:17:35.960 violation, but to do so on a class -wide basis, 00:17:36.299 --> 00:17:38.819 such that they would need to show that every 00:17:38.819 --> 00:17:41.720 class member suffered a uniform injury and damages 00:17:41.720 --> 00:17:44.640 that could be readily calculated on a class -wide 00:17:44.640 --> 00:17:48.200 basis. That was no mean feat in a case like this 00:17:48.200 --> 00:17:51.019 where class members purchased Sunday ticket at 00:17:51.019 --> 00:17:53.539 different times and different prices and for 00:17:53.539 --> 00:17:56.200 different reasons Some because they wanted to 00:17:56.200 --> 00:17:59.319 watch a particular team But lived outside of 00:17:59.319 --> 00:18:02.019 that teams home market and others because they 00:18:02.019 --> 00:18:04.339 wanted to watch as much football as possible 00:18:04.339 --> 00:18:07.599 Now those are very different customers, and they 00:18:07.599 --> 00:18:09.799 had very different motivations for purchasing 00:18:09.799 --> 00:18:13.559 the product And if you remove pooling and exclusivity, 00:18:13.740 --> 00:18:15.599 removing that is going to affect those different 00:18:15.599 --> 00:18:18.700 class members in very different ways. So that's 00:18:18.700 --> 00:18:21.559 their challenge. Let me have you just go to this 00:18:21.559 --> 00:18:23.200 yardstick question, because I guess what I'm 00:18:23.200 --> 00:18:26.420 trying to figure out is if college football is 00:18:26.420 --> 00:18:31.500 an inappropriate yardstick, whatever would be 00:18:31.500 --> 00:18:34.200 in this kind of case? Well, I mean, there would 00:18:34.200 --> 00:18:37.339 be other potential yardsticks. And you might 00:18:37.339 --> 00:18:41.309 start with other sports leagues that are actually 00:18:41.309 --> 00:18:45.190 governed by the SBA. And so you could start with 00:18:45.190 --> 00:18:47.369 NBA. You could start with Major League Baseball. 00:18:47.630 --> 00:18:49.809 Now, to be sure, there's no perfect yardstick. 00:18:49.869 --> 00:18:54.029 There's no sort of NFL prime. So if you're going 00:18:54.029 --> 00:18:57.170 to use a yardstick, you have to make the appropriate 00:18:57.170 --> 00:18:59.630 adjustments to the differences in the markets. 00:19:00.170 --> 00:19:02.289 But I think those would have actually been sort 00:19:02.289 --> 00:19:04.589 of a better starting place because I really do 00:19:04.589 --> 00:19:09.670 think the SBA and what it allows is a bit of 00:19:09.670 --> 00:19:12.289 a fundamental game changer here and really does 00:19:12.289 --> 00:19:14.940 distinguish the college football market. But 00:19:14.940 --> 00:19:18.740 I would also say, I'm not here to say that you 00:19:18.740 --> 00:19:21.599 couldn't possibly find an expert who could put 00:19:21.599 --> 00:19:25.859 together a coherent model that used college football 00:19:25.859 --> 00:19:28.480 as the yardstick. I mean, that might be theoretically 00:19:28.480 --> 00:19:31.359 possible, but it wouldn't be Dr. Rascher, or 00:19:31.359 --> 00:19:34.000 at least wouldn't be Dr. Rascher in this case. 00:19:34.559 --> 00:19:37.539 And I think the fundamental problem with Dr. 00:19:37.680 --> 00:19:41.099 Rascher, and it's evident with the SBA, but it's 00:19:41.099 --> 00:19:44.549 evident in other respects as well, is Every time 00:19:44.549 --> 00:19:47.349 he was asked, all right, how are we going to 00:19:47.349 --> 00:19:50.150 get though from these various but for worlds 00:19:50.150 --> 00:19:53.910 to the result that you predict, which is this 00:19:53.910 --> 00:19:56.690 is all going to be available for free in the 00:19:56.690 --> 00:19:58.609 sense that it would be part of your basic cable 00:19:58.609 --> 00:20:01.849 package. Every time he got asked that hard question 00:20:01.849 --> 00:20:05.329 about every but for world, his answer was the 00:20:05.329 --> 00:20:08.630 sophisticated parties will work it out. That's 00:20:08.630 --> 00:20:10.509 not an appropriate answer. Well, Mr. Klein, I 00:20:10.509 --> 00:20:12.309 think it was more than that. As your friend said, 00:20:12.650 --> 00:20:15.309 with this much money on the table, sophisticated 00:20:15.309 --> 00:20:18.089 parties will work it out. I'll take the sort 00:20:18.089 --> 00:20:21.150 of friendly amendment, if you will. But it's 00:20:21.150 --> 00:20:23.109 not just that they'll work out something. They'll 00:20:23.109 --> 00:20:25.670 work out that it's all available on basic cable 00:20:25.670 --> 00:20:29.420 for free. And they did in college football. They 00:20:29.420 --> 00:20:32.880 did, but without the overhang of the SBA. And 00:20:32.880 --> 00:20:35.920 in this case, we have no explanation from Dr. 00:20:36.200 --> 00:20:39.099 Rasher as to how that difference would be accommodated 00:20:39.099 --> 00:20:41.099 in this situation. And it's a huge difference, 00:20:41.099 --> 00:20:45.460 right? Because here, you start with the protected 00:20:45.460 --> 00:20:51.799 SBA broadcasts. And so those are broadcasts that 00:20:51.799 --> 00:20:55.720 have the proprietary markings of CBS and Fox. 00:20:56.259 --> 00:20:58.759 And what Sunday Ticket does is they They take 00:20:58.759 --> 00:21:00.900 those direct feeds and they make them available 00:21:00.900 --> 00:21:03.279 in certain markets that don't compete directly 00:21:03.279 --> 00:21:06.599 with CBS and NBC. What would happen in the but 00:21:06.599 --> 00:21:09.700 for world is you might have the possibility of 00:21:09.700 --> 00:21:13.559 having those feeds go to CBS and Fox's most direct 00:21:13.559 --> 00:21:16.779 competitors, the other broadcast networks, ABC 00:21:16.779 --> 00:21:22.519 and NBC. That's a real difference and you either 00:21:22.519 --> 00:21:26.359 have to imagine a world where NBC, whether CBS 00:21:26.359 --> 00:21:28.839 and Fox are going to willfully give their direct 00:21:28.839 --> 00:21:31.720 feeds with all of their announcers that they 00:21:31.720 --> 00:21:34.259 paid for, all of their sort of trademarking. 00:21:34.339 --> 00:21:35.940 They're going to either give that to their closest 00:21:35.940 --> 00:21:39.299 rivals or you have to imagine a world where the 00:21:39.299 --> 00:21:41.599 teams are going to produce or somebody is going 00:21:41.599 --> 00:21:43.859 to produce a completely different broadcast. 00:21:44.779 --> 00:21:46.880 And that's going to bypass that problem. And 00:21:46.880 --> 00:21:48.539 then you need a theory as to how is that going 00:21:48.539 --> 00:21:50.960 to be done? Is that going to be available on 00:21:50.960 --> 00:21:53.339 basic cable? Or is that going to be some sort 00:21:53.339 --> 00:21:56.460 of proprietary thing that you have to pay extra 00:21:56.460 --> 00:21:59.099 for? And remember, what they're imagining is 00:21:59.099 --> 00:22:01.799 a but for world, where the teams are going to 00:22:01.799 --> 00:22:06.380 be negotiating individually. And so one. seems 00:22:06.380 --> 00:22:09.900 to be perfectly obvious potential but for world 00:22:09.900 --> 00:22:13.180 is a world where the Cowboys just take their 00:22:13.180 --> 00:22:15.599 available excess games if you will the games 00:22:15.599 --> 00:22:17.900 that aren't going to be showed over the air and 00:22:17.900 --> 00:22:20.500 they market them just to out -of -market Cowboys 00:22:20.500 --> 00:22:24.279 fans and various teams do that and those probably 00:22:24.279 --> 00:22:26.559 wouldn't be available over the air for nothing 00:22:26.559 --> 00:22:29.779 and You also might have a situation where as 00:22:29.779 --> 00:22:32.039 we suggest... Probably is doing a lot of work 00:22:32.039 --> 00:22:34.339 in that answer, right? Whether it's impeachable 00:22:34.339 --> 00:22:36.079 or not isn't the question. This is whether it's 00:22:36.079 --> 00:22:38.299 admissible. But it's whether he has a reliable 00:22:38.299 --> 00:22:41.900 theory as to how you get from... Well, why isn't 00:22:41.900 --> 00:22:44.220 that the end of the inquiry? So we've said that 00:22:44.220 --> 00:22:46.920 702 requires a reliable methodology. This is 00:22:46.920 --> 00:22:49.779 a yardstick methodology. The yardstick chose 00:22:49.779 --> 00:22:54.750 the only other nationally broadcast... football 00:22:54.750 --> 00:22:57.490 games that we have had in this country for the 00:22:57.490 --> 00:23:01.970 last several decades, at least on broadcasts. 00:23:02.009 --> 00:23:05.630 I get the SBA point, but to Judge Thomas's question 00:23:05.630 --> 00:23:11.650 earlier, if that's not a yardstick, what is? 00:23:11.750 --> 00:23:14.950 I mean, it seems like if the yardstick is the 00:23:14.950 --> 00:23:18.630 methodology, that's this gatekeeping. Once the 00:23:18.630 --> 00:23:21.009 methodology is applied, why isn't it all impeachment? 00:23:21.589 --> 00:23:25.569 It's not all impeachment because you need a reliable 00:23:25.569 --> 00:23:29.289 yardstick and you also need a reliable method 00:23:29.289 --> 00:23:32.690 to Essentially explain how you get from the but 00:23:32.690 --> 00:23:35.789 for world to the conclusion that it's all available 00:23:35.789 --> 00:23:38.890 for free and where is any of that in? Daubert 00:23:38.890 --> 00:23:42.230 or Kumo tire in terms of it's a reliable methodology 00:23:42.230 --> 00:23:45.089 all of those other things are Talking about the 00:23:45.089 --> 00:23:47.049 substance of the experts opinions that went to 00:23:47.049 --> 00:23:49.369 the jury Well, I think you get it right from 00:23:49.369 --> 00:23:54.170 rule 702, particularly after the 2023 amendments. 00:23:54.769 --> 00:23:57.349 And they specifically clarify that it's not just 00:23:57.349 --> 00:24:00.789 a reliable methodology. You have to apply the 00:24:00.789 --> 00:24:04.410 methodology in a reliable fashion. And I want 00:24:04.410 --> 00:24:06.230 to be clear about this too, because it's not 00:24:06.230 --> 00:24:09.930 like Rasher just said, the but for world is college 00:24:09.930 --> 00:24:13.240 football with continued pooling. He said that 00:24:13.240 --> 00:24:16.220 was one available, but for world. But he also 00:24:16.220 --> 00:24:18.500 said, and this is exactly what Judge Gutierrez 00:24:18.500 --> 00:24:21.319 focused on, in finding it unreliable. He also 00:24:21.319 --> 00:24:24.079 said there was another but for world, which was 00:24:24.079 --> 00:24:26.650 without pooling. And then he said... Then there's 00:24:26.650 --> 00:24:29.950 the question of, do the teams negotiate individually, 00:24:30.029 --> 00:24:32.490 or do they negotiate in groups? And he said they're 00:24:32.490 --> 00:24:34.710 different, but four worlds with that. And so 00:24:34.710 --> 00:24:37.109 by the time he's done, and then do they negotiate 00:24:37.109 --> 00:24:39.529 in groups of six, or six groups of four, four 00:24:39.529 --> 00:24:42.170 groups of six? And all of those are nearly an 00:24:42.170 --> 00:24:44.710 infinite possibility of different, but four worlds 00:24:44.710 --> 00:24:48.410 that Dr. Rascher posited. And his explanation 00:24:48.410 --> 00:24:53.029 for why he could do that is he said, we're lucky 00:24:53.029 --> 00:24:56.160 here because all of them lead to the same outcome 00:24:56.160 --> 00:25:00.240 which is it's all available on basic cable for 00:25:00.240 --> 00:25:04.019 free and the problem is with none of those but 00:25:04.019 --> 00:25:06.980 four worlds did he show a reliable methodology 00:25:06.980 --> 00:25:09.869 to get from the but four world to the result 00:25:09.869 --> 00:25:12.609 that it's all available, not just in some form, 00:25:12.910 --> 00:25:15.990 but all available on basic cable for free. And 00:25:15.990 --> 00:25:18.269 when he's asked about how you do that in all 00:25:18.269 --> 00:25:21.430 of those situations, he says, well, the sophisticated 00:25:21.430 --> 00:25:24.450 parties will work it out. And that's why the 00:25:24.450 --> 00:25:27.210 testimony that Judge Gutierrez relies on in footnote 00:25:27.210 --> 00:25:30.710 six of his opinion is particularly problematic 00:25:30.710 --> 00:25:33.390 for Dr. Rascher, because it's not just he found 00:25:33.390 --> 00:25:35.750 some evidence in the record that contradicted 00:25:35.750 --> 00:25:38.289 something. It's that Dr. Rascher's answer to 00:25:38.279 --> 00:25:40.839 every hard question is the sophisticated parties 00:25:40.839 --> 00:25:44.400 will work it out. Well, Footnote 6 collects the 00:25:44.400 --> 00:25:47.519 testimony of the sophisticated parties. And the 00:25:47.519 --> 00:25:50.079 sophisticated parties are saying, you can't work 00:25:50.079 --> 00:25:52.799 this out. This is fundamentally different. We're 00:25:52.799 --> 00:25:57.380 never going to give our proprietary feeds to 00:25:57.380 --> 00:26:01.869 our direct competitor broadcasters. not be proper 00:26:01.869 --> 00:26:04.589 for the jury to discount that given that those 00:26:04.589 --> 00:26:06.630 sophisticated parties at least according to basic 00:26:06.630 --> 00:26:10.730 economic theory are arguably enjoying Super competitive 00:26:10.730 --> 00:26:13.549 pricing under the umbrella that was proven and 00:26:13.549 --> 00:26:16.269 the conspiracy that was established So it would 00:26:16.269 --> 00:26:18.970 be one thing if they had some you know fact witness 00:26:18.970 --> 00:26:21.630 or some model that directly showed this is how 00:26:21.630 --> 00:26:24.720 you solve that problem But they didn't there's 00:26:24.720 --> 00:26:27.660 nothing there. There's just rasher saying they'll 00:26:27.660 --> 00:26:30.119 figure it out And there's the people he say he 00:26:30.119 --> 00:26:33.000 says are going to figure it out saying this is 00:26:33.000 --> 00:26:35.640 not a speed bump This is an insurmountable hurdle 00:26:35.640 --> 00:26:38.440 in this industry, and it's fundamentally different 00:26:38.440 --> 00:26:43.119 from giving your feed to to direct TV that's 00:26:43.119 --> 00:26:45.839 going to have it in limited markets to a limited 00:26:45.839 --> 00:26:48.400 group of consumers, but to give your direct feeds 00:26:48.400 --> 00:26:52.740 to your fiercest rivals to show over the air 00:26:52.740 --> 00:26:56.319 or on a basic cable package is something that's 00:26:56.319 --> 00:26:58.400 just not going to happen. And there's no counter 00:26:58.400 --> 00:27:01.539 testimony on that for the jury to believe. And 00:27:01.539 --> 00:27:04.630 again, at the end of the day, I think the question 00:27:04.630 --> 00:27:07.029 here is, and that's why I started with the standard 00:27:07.029 --> 00:27:10.529 of review, it's whether Judge Gutierrez abused 00:27:10.529 --> 00:27:13.609 his discretion in exercising his gatekeeping 00:27:13.609 --> 00:27:16.769 function to say that this is just a bridge too 00:27:16.769 --> 00:27:19.250 far here, this yardstick's fundamentally flawed, 00:27:19.549 --> 00:27:22.450 and I haven't heard an ability for the expert 00:27:22.450 --> 00:27:26.329 to get over the hump from the but for world to 00:27:26.329 --> 00:27:28.630 the result that he's predicting in all of these 00:27:28.630 --> 00:27:31.380 different scenarios. And so I think he acted 00:27:31.380 --> 00:27:35.099 well within his discretion in excluding Dr. Rasher, 00:27:35.259 --> 00:27:37.980 and I'm happy to talk about Dr. Zona as well, 00:27:38.259 --> 00:27:42.880 but without those experts, as he said, there's 00:27:42.880 --> 00:27:46.460 really no ability to prove antitrust injury or 00:27:46.460 --> 00:27:50.740 damages at that point. And with, I'm sorry. My 00:27:50.740 --> 00:27:57.019 fundamental problem with what your position is. 00:27:57.200 --> 00:28:01.220 Taking all of this from the jury I know I mean 00:28:01.220 --> 00:28:06.019 juries are imprecise. It's a archaic sort of 00:28:06.019 --> 00:28:09.839 process we have for follow for resolving disputes 00:28:09.839 --> 00:28:13.180 and you know as a trial judge there have been 00:28:13.180 --> 00:28:16.980 many times I could point to where the jury came 00:28:16.980 --> 00:28:21.900 to a result that as long as the and the instructions 00:28:21.900 --> 00:28:27.799 were valid and correct then We accept the jury's 00:28:27.799 --> 00:28:33.339 verdict. So this judge, remarkably, very soon 00:28:33.339 --> 00:28:38.019 after the verdict, decides to take it away from 00:28:38.019 --> 00:28:40.990 the jury. Well, I guess what I would say is, 00:28:41.109 --> 00:28:42.589 you know, he didn't take it away from the jury. 00:28:42.630 --> 00:28:45.630 It went to the jury. Well, right. And then he, 00:28:45.869 --> 00:28:50.730 of course, post trial then decides the rule 702 00:28:50.730 --> 00:28:52.609 issues. And I don't think there's anything wrong 00:28:52.609 --> 00:28:54.609 with that. I mean, it's no different. I mean, 00:28:54.609 --> 00:28:57.549 you know, Jamals, as you know, get granted all 00:28:57.549 --> 00:29:00.450 of the time. And I think there's nothing particularly 00:29:00.450 --> 00:29:03.589 problematic about a judge who decides, look, 00:29:03.609 --> 00:29:06.619 I'm going to let this go to the jury. But I have 00:29:06.619 --> 00:29:10.200 lingering concerns about the Rule 702 issues. 00:29:10.680 --> 00:29:13.480 But I'm going to not knock this out on Rule 50A, 00:29:13.539 --> 00:29:15.220 which he could have done. And then that would 00:29:15.220 --> 00:29:17.539 really be taking it away from the jury. But what 00:29:17.539 --> 00:29:20.410 he decided to do is sort of defer. And then he 00:29:20.410 --> 00:29:22.109 considered these issues again as part of the 00:29:22.109 --> 00:29:27.069 rule 50B motion briefing. And then he said, there's 00:29:27.069 --> 00:29:28.890 a fundamental problem here, and I'm going to 00:29:28.890 --> 00:29:31.509 exercise my discretion, under rule 702. That 00:29:31.509 --> 00:29:33.450 doesn't automatically take it from the jury, 00:29:33.769 --> 00:29:35.930 but he then makes the constituent judgment that 00:29:35.930 --> 00:29:38.390 without the experts, there's insufficient evidence. 00:29:38.569 --> 00:29:39.849 So I don't think there's anything wrong. Did 00:29:39.849 --> 00:29:41.730 the district court anywhere express its lingering 00:29:41.730 --> 00:29:45.430 concerns after, I think, twice denying the Daubert 00:29:45.430 --> 00:29:48.450 motion as these experts? He did, actually, and 00:29:48.450 --> 00:29:51.130 he did it essentially right after these experts 00:29:51.130 --> 00:29:58.789 testified. you know, rule 702 motions, the Dauber 00:29:58.789 --> 00:30:02.210 motions. So he said it right then. That was, 00:30:02.609 --> 00:30:05.009 you know, the plaintiff still had a possibility 00:30:05.009 --> 00:30:07.109 of putting on a rebuttal case at that point. 00:30:07.750 --> 00:30:09.390 So they could have called Rasher back up and 00:30:09.390 --> 00:30:11.309 tried to fix the problem, but I think the problems 00:30:11.309 --> 00:30:13.829 were fundamentally unfixable. So we did, you 00:30:13.829 --> 00:30:16.549 know, he did say this in real time that he was 00:30:16.549 --> 00:30:19.049 having problems with this. And the other thing 00:30:19.049 --> 00:30:20.430 I would just say is to the extent there's any 00:30:20.430 --> 00:30:22.329 sort of lingering sort of concern about fairness 00:30:22.329 --> 00:30:25.809 on any of this. I mean, I think the Supreme Court's 00:30:25.809 --> 00:30:28.349 decision in Weisgram is a complete answer. That's 00:30:28.349 --> 00:30:30.630 a case where the court approves the possibility 00:30:30.630 --> 00:30:33.190 of the appellate court reversing on the Rule 00:30:33.190 --> 00:30:36.029 702 issue, and then the appellate court, in the 00:30:36.029 --> 00:30:39.109 first instance, saying, there's J -Mol is appropriate 00:30:39.109 --> 00:30:42.109 here without the experts. And Justice Ginsburg's 00:30:42.109 --> 00:30:44.869 opinion for the unanimous court specifically 00:30:44.869 --> 00:30:46.990 addressed the sort of fairness concerns of that 00:30:46.990 --> 00:30:49.250 and said, there's no fairness problem with this. 00:30:49.289 --> 00:30:51.910 In a post -Daubert world, nobody like holds back 00:30:51.910 --> 00:30:54.650 the really good expert just in the hopes that 00:30:54.650 --> 00:30:58.140 the first two just skate by. So if you can do 00:30:58.140 --> 00:31:00.960 this on appeal, certainly a trial judge can do 00:31:00.960 --> 00:31:04.599 it post trial. And so I hope that's responsive 00:31:04.599 --> 00:31:06.539 to the concern you raised, because I don't think 00:31:06.539 --> 00:31:08.779 methodologically there's anything wrong about 00:31:08.779 --> 00:31:11.180 the way that he handled this. And it ultimately 00:31:11.180 --> 00:31:14.440 maps on to first question, was he within his 00:31:14.440 --> 00:31:18.039 discretion to exclude the evidence as unreliable? 00:31:18.119 --> 00:31:19.940 I would say that's an abuse of discretion, and 00:31:19.940 --> 00:31:22.220 I would say he acted well within the abuse of 00:31:22.220 --> 00:31:26.799 discretion. And then it is a matter of law as 00:31:26.799 --> 00:31:30.279 to whether then he properly entered JMAW with 00:31:30.279 --> 00:31:32.740 the experts removed from the case. case, but 00:31:32.740 --> 00:31:34.640 without the experts in this case, kind of like 00:31:34.640 --> 00:31:37.339 the rail freight case in the DC circuit, there's 00:31:37.339 --> 00:31:39.759 very little left once the experts are removed 00:31:39.759 --> 00:31:41.839 from the case. Could you spend some time on the 00:31:41.839 --> 00:31:44.940 class certification? I would be delighted to 00:31:44.940 --> 00:31:48.799 do that because I think that the class certification, 00:31:49.019 --> 00:31:52.440 once you don't have those two critical witnesses, 00:31:53.420 --> 00:31:56.140 I think class certification would have to fall 00:31:56.140 --> 00:31:58.500 almost automatically. I think the only reason 00:31:58.500 --> 00:32:01.180 that Judge Gutierrez didn't sort of reach that 00:32:01.180 --> 00:32:04.960 issue is because he entered J -Mall. And I also 00:32:04.960 --> 00:32:08.539 think the standard for making that judgment under 00:32:08.539 --> 00:32:12.539 Rule 23 is actually kind of less deferential 00:32:12.539 --> 00:32:15.799 to sort of the jury and the gatekeeping. I mean, 00:32:15.839 --> 00:32:19.240 a judge, even in a case where they let the experts 00:32:19.240 --> 00:32:22.160 in. the judge can still say, there's so many 00:32:22.160 --> 00:32:25.200 problems with these experts that I'm not going 00:32:25.200 --> 00:32:28.220 to certify this case as a class action. It can 00:32:28.220 --> 00:32:30.559 still proceed with the individual plaintiffs 00:32:30.559 --> 00:32:33.140 if they want, but there's so many problems with 00:32:33.140 --> 00:32:35.720 the class -wide evidence in a case like this 00:32:35.720 --> 00:32:40.480 that even though you pass rule 702, you still 00:32:40.480 --> 00:32:44.019 don't satisfy the standard for the reliable evidence 00:32:44.019 --> 00:32:46.559 you need for class certification. I guess the 00:32:46.559 --> 00:32:49.359 problem there is that the district court did 00:32:49.390 --> 00:32:52.710 did certify the class based on these theories, 00:32:53.130 --> 00:32:56.410 didn't revisit that, and then provided, after 00:32:56.410 --> 00:33:00.309 Jamal provided an alternative new trial, how 00:33:00.309 --> 00:33:03.410 is that not inconsistent with understanding what 00:33:03.410 --> 00:33:09.049 the district court did as implicitly decertifying 00:33:09.049 --> 00:33:12.809 a class? I mean, I just don't, we raised this 00:33:12.809 --> 00:33:14.730 issue, he just didn't address it one way or another. 00:33:15.210 --> 00:33:18.000 And, you know, I do think, He already was addressing 00:33:18.000 --> 00:33:20.920 it one conditional sort of motion. So I don't 00:33:20.920 --> 00:33:23.319 think we can fault him for not sort of addressing 00:33:23.319 --> 00:33:25.400 everything that any one of the parties sort of 00:33:25.400 --> 00:33:26.720 raised. So I don't think there's any implicit 00:33:26.720 --> 00:33:29.279 rejection of this. And I do think it would be 00:33:29.279 --> 00:33:31.059 within this court's power to sort of consider 00:33:31.059 --> 00:33:34.539 this on appeal. Well, speaking of that, what 00:33:34.539 --> 00:33:37.700 about the injunctive relief? So I'm glad you 00:33:37.700 --> 00:33:39.319 asked. I think on the injunctive relief, that 00:33:39.319 --> 00:33:41.339 was another thing he didn't expressly address. 00:33:41.420 --> 00:33:43.119 But it wasn't like he forgot about it. I mean, 00:33:43.299 --> 00:33:45.500 the plaintiffs specifically said, wait a second. 00:33:45.559 --> 00:33:48.339 You need to address injunctive relief. And we 00:33:48.339 --> 00:33:51.460 said, no, you don't, because this case is effectively 00:33:51.460 --> 00:33:54.259 over. And without antitrust injury, there's no 00:33:54.259 --> 00:33:57.640 basis for an injunction. And I think that this 00:33:57.640 --> 00:33:59.480 - Well, you reminded him. But is there anything 00:33:59.480 --> 00:34:01.599 you can point us to that contains the district 00:34:01.599 --> 00:34:03.700 court's analysis of that question, reaching that 00:34:03.700 --> 00:34:07.619 question? No. OK. But I think the analysis of 00:34:07.619 --> 00:34:09.139 that question is very straightforward, and let 00:34:09.139 --> 00:34:11.920 me try to do it in 30 seconds. I mean, this court 00:34:11.920 --> 00:34:15.119 has a decision called Catlin against Washington 00:34:15.119 --> 00:34:17.579 Energy, which we cite in our briefs, that makes 00:34:17.579 --> 00:34:19.820 crystal clear, both in the majority opinion and 00:34:19.820 --> 00:34:22.119 in Judge Reinhart's concurrence, that if you 00:34:22.119 --> 00:34:24.400 don't prove antitrust injury, you do not get 00:34:24.400 --> 00:34:27.179 injunctive relief. So that's circuit law. We 00:34:27.179 --> 00:34:29.059 cite it in our briefs. My friends on the other 00:34:29.059 --> 00:34:31.260 side don't even respond to it. Now, the only 00:34:31.260 --> 00:34:33.579 thing they could possibly say is that in some 00:34:33.579 --> 00:34:36.059 cases, there might be the possibility that you 00:34:36.059 --> 00:34:39.159 can't prove past injury, but you could prove 00:34:39.159 --> 00:34:41.980 threatened future injury. But that might be true 00:34:41.980 --> 00:34:45.500 in some case where there's some new thing that 00:34:45.500 --> 00:34:47.659 just happened at the end of the class period 00:34:47.659 --> 00:34:50.800 or something, and your basic theory of the case 00:34:50.800 --> 00:34:54.480 doesn't address that. But in this case, they 00:34:54.480 --> 00:34:56.239 challenged a practice that was going on for a 00:34:56.239 --> 00:34:59.320 decade. And if in doing that, they can't show 00:34:59.320 --> 00:35:01.579 that there was any actual injury to the class, 00:35:02.159 --> 00:35:05.300 then they don't get injunctive relief full stop. 00:35:05.360 --> 00:35:09.420 And I think the Catlin case is circuit precedent 00:35:09.420 --> 00:35:11.760 that supports that result, if I may reserve. 00:35:12.179 --> 00:35:14.099 Any other questions? OK, you'll have your full 00:35:14.099 --> 00:35:28.619 two minutes. Thank you. Thank you. All of the 00:35:28.619 --> 00:35:32.119 arguments we just heard about why Dr. Rasher's 00:35:32.119 --> 00:35:36.039 opinion was supposedly too unreliable are all 00:35:36.039 --> 00:35:38.900 factual questions that were thoroughly aired 00:35:38.900 --> 00:35:42.440 at trial. I'll give one example on feed sharing, 00:35:42.760 --> 00:35:45.019 where the district court simply chose to credit 00:35:45.019 --> 00:35:49.260 the testimony of one witness, Sean McManus. At 00:35:49.260 --> 00:35:55.059 6 ER 1016, the NFL asked Larry Jones, Mr. McManus' 00:35:55.280 --> 00:35:58.079 counterpart at Fox, Couldn't you have just told 00:35:58.079 --> 00:36:00.840 the NFL we're not going to share our feeds? And 00:36:00.840 --> 00:36:03.400 his answer was, I could have said it. It wouldn't 00:36:03.400 --> 00:36:06.239 have gone anywhere. But you're in a negotiation. 00:36:06.340 --> 00:36:08.539 You've got to have credibility. You don't want 00:36:08.539 --> 00:36:10.880 to walk in asking for things you know you're 00:36:10.880 --> 00:36:14.219 not going to get. A jury hearing this evidence 00:36:14.219 --> 00:36:17.639 could have concluded that feed sharing was simply 00:36:17.639 --> 00:36:21.449 a pretext. as demonstrated by the NFL's own New 00:36:21.449 --> 00:36:25.130 Frontier Study, where they themselves assessed 00:36:25.130 --> 00:36:28.190 that the networks would share their feeds with 00:36:28.190 --> 00:36:31.250 other channels and they might just pay less. 00:36:31.469 --> 00:36:33.829 That's what one would expect when you go to a 00:36:33.829 --> 00:36:37.429 monopolized, restrained market to one where the 00:36:37.429 --> 00:36:40.449 restraints are relaxed or lifted. There was no 00:36:40.449 --> 00:36:43.630 answer for the exclusion of Dr. Rascher's other 00:36:43.630 --> 00:36:47.000 opinions on the Canadian price or his opinions 00:36:47.000 --> 00:36:49.800 that the premium price agreement to restrict 00:36:49.800 --> 00:36:53.219 output harmed the class. All of these issues 00:36:53.219 --> 00:36:55.900 were aired. The notion that somehow the judge 00:36:55.900 --> 00:36:58.739 gave warning and we could have cured any of his 00:36:58.739 --> 00:37:02.199 misconceptions by recalling Dr. Zona is belied 00:37:02.199 --> 00:37:04.960 by the actual sequence of events at trial where 00:37:04.960 --> 00:37:07.579 the judge, while Dr. Rascher was on the stand, 00:37:07.960 --> 00:37:11.019 the morning before his day two testimony, said, 00:37:11.039 --> 00:37:13.610 I think this is all very interesting. but we'll 00:37:13.610 --> 00:37:16.570 see what the jury thinks. The first time he raised 00:37:16.570 --> 00:37:20.449 any concerns with Dr. Rasher or Dr. Zona was 00:37:20.449 --> 00:37:23.969 in the defense case in chief after he expressed 00:37:23.969 --> 00:37:26.929 that he was aggravated about how we had cross 00:37:26.929 --> 00:37:30.050 -examined Roger Goodell, the NFL commissioner, 00:37:30.710 --> 00:37:32.969 and Mr. Jones, the owner of the Dallas Cowboys. 00:37:33.210 --> 00:37:36.550 And after doing so, he issued an order. saying 00:37:36.550 --> 00:37:38.730 that we could not put on a rebuttal case at all. 00:37:38.989 --> 00:37:41.369 And essentially, we begged the court's permission 00:37:41.369 --> 00:37:44.769 to put on another economist, Einar L. Haig. The 00:37:44.769 --> 00:37:47.250 district court's order and the NFL's brief never 00:37:47.250 --> 00:37:49.550 addressed the fact that there is a completely 00:37:49.550 --> 00:37:53.190 independent expert, Professor L. Haig, who testified 00:37:53.190 --> 00:37:55.809 in rebuttal and who the jury was permitted to 00:37:55.809 --> 00:37:59.190 consider. Would you respond to the argument about 00:37:59.190 --> 00:38:07.570 it was proper to deny the class? Here, the district 00:38:07.570 --> 00:38:10.190 court certified the class and he declined to 00:38:10.190 --> 00:38:12.869 decertify. Either way, the NFL has to show an 00:38:12.869 --> 00:38:16.489 abuse of discretion. Here, this case was tried 00:38:16.489 --> 00:38:19.590 because all the evidence was common evidence. 00:38:20.090 --> 00:38:22.309 There was common class -wide evidence about the 00:38:22.309 --> 00:38:24.929 pooling agreement. Common class -wide evidence 00:38:24.929 --> 00:38:28.289 about the conspiracy to restrict output. common 00:38:28.289 --> 00:38:30.869 evidence about how that led to an overcharge 00:38:30.869 --> 00:38:33.909 because these agreements required that Sunday 00:38:33.909 --> 00:38:37.190 ticket be an add -on premium at a premium price. 00:38:38.070 --> 00:38:41.150 Mr. Clement didn't mention a single individualized 00:38:41.150 --> 00:38:44.809 issue that would somehow predominate over all 00:38:44.809 --> 00:38:47.150 of these common issues with or without the experts. 00:38:47.849 --> 00:38:51.150 Maybe I misunderstood him, but I thought he said 00:38:51.150 --> 00:38:56.170 that it wouldn't be possible to measure the damages. 00:38:56.670 --> 00:39:00.989 Not so. And let's give some examples. First of 00:39:00.989 --> 00:39:03.469 all, there was factual evidence in the record. 00:39:04.070 --> 00:39:07.110 As to the prices that were charged, Dr. Zona 00:39:07.110 --> 00:39:09.570 explained just a pure observation of the data, 00:39:09.889 --> 00:39:12.769 that most people paid list prices or close to 00:39:12.769 --> 00:39:14.809 it. He said, quote, there are two observations 00:39:14.809 --> 00:39:17.730 in the data. There was factual evidence about 00:39:17.730 --> 00:39:21.150 a range of but four prices, including that ESPN 00:39:21.150 --> 00:39:25.570 wanted to offer this for $70. And finally, The 00:39:25.570 --> 00:39:28.369 jury could rationally conclude, based on the 00:39:28.369 --> 00:39:31.150 defendant's own testimony, excuse me, CBS and 00:39:31.150 --> 00:39:34.769 Fox's testimony, that without this requirement 00:39:34.769 --> 00:39:37.230 that there be an add -on premium subscription, 00:39:37.469 --> 00:39:40.130 they were concerned it would be offered for free. 00:39:40.269 --> 00:39:42.690 It would be in their rational economic interest 00:39:42.690 --> 00:39:45.090 to put it on basic. That would have allowed the 00:39:45.090 --> 00:39:47.530 jury to compute damages to the class as a whole. 00:39:48.050 --> 00:39:53.130 On the B2, the injunctive class issue, I'd asked 00:39:53.130 --> 00:39:56.590 you before about what an injunction would look 00:39:56.590 --> 00:40:00.130 like here. How would that work as a class action 00:40:00.130 --> 00:40:04.070 where the class is defined as purchasers of DirecTV 00:40:04.070 --> 00:40:07.030 and not NFL fans who are interested in out of 00:40:07.030 --> 00:40:10.400 market games in general? Because these purchasers 00:40:10.400 --> 00:40:12.860 have a demonstrated history of being interested 00:40:12.860 --> 00:40:15.579 in watching the out -of -market games and if 00:40:15.579 --> 00:40:18.119 the teams for instance Why is that close enough 00:40:18.119 --> 00:40:19.619 point me to something that would help me help 00:40:19.619 --> 00:40:22.420 me connect those dots? Yeah Because the entire 00:40:22.420 --> 00:40:25.460 theory of harm here is that but for these agreements 00:40:25.460 --> 00:40:28.139 the games would be on basic channels They wouldn't 00:40:28.139 --> 00:40:30.500 have to buy a product at all. They wouldn't have 00:40:30.500 --> 00:40:33.159 to buy an ad on Sunday ticket They have TVs they 00:40:33.159 --> 00:40:35.719 want to watch the games and if restrained more 00:40:35.719 --> 00:40:38.219 of these games would be available over the air 00:40:38.159 --> 00:40:40.519 on basic channels. These are not unwashed masses 00:40:40.519 --> 00:40:42.739 off the street saying, I would have liked this 00:40:42.739 --> 00:40:45.320 product hypothetically. These are people with 00:40:45.320 --> 00:40:48.039 a course of dealing of buying this product. And 00:40:48.039 --> 00:40:50.880 if the ongoing conduct is enjoined, those games 00:40:50.880 --> 00:40:53.559 would be available on their basic channels. But 00:40:53.559 --> 00:40:56.280 I guess even on, correct me if I'm wrong, even 00:40:56.280 --> 00:40:59.239 on Dr. Rascher's own terms, the theory is that 00:40:59.239 --> 00:41:02.300 you'd be moving from a world in which everyone, 00:41:03.280 --> 00:41:06.219 the DirecTV subscribers would have access to 00:41:06.219 --> 00:41:12.760 every game nationwide. To what exactly? To a 00:41:12.760 --> 00:41:16.599 sense where conferences negotiate for it. Is 00:41:16.599 --> 00:41:18.739 there enough there for us to find that every 00:41:18.739 --> 00:41:21.679 game, the entire DirecTV Nationwide package would 00:41:21.679 --> 00:41:24.539 be available to every subscriber on those terms 00:41:24.539 --> 00:41:26.679 and broadcast? Can you help me pin that down 00:41:26.679 --> 00:41:29.480 in the record? Yes, there's two key pieces of 00:41:29.480 --> 00:41:32.119 evidence. Number one, Dr. Rasher's yardstick 00:41:32.119 --> 00:41:35.539 analysis demonstrates that less popular content 00:41:35.539 --> 00:41:37.739 in terms of college football, there is sufficient 00:41:37.739 --> 00:41:40.900 demand and capacity for 40 games to be available 00:41:40.900 --> 00:41:43.780 on Saturdays on those channels. And his opinion 00:41:43.780 --> 00:41:47.579 is that the 13 games of the NFL, even the Jaguars, 00:41:47.659 --> 00:41:50.989 he testified. at the time, one of the less popular 00:41:50.989 --> 00:41:54.550 NFL teams, is more popular than the most popular 00:41:54.550 --> 00:41:56.610 college football game. And that was confirmed 00:41:56.610 --> 00:42:00.929 by the New Frontier analysis. New Frontier demonstrated 00:42:00.929 --> 00:42:03.409 that all of the NFL games, there would be a demand 00:42:03.409 --> 00:42:06.090 to make those games available on channels that 00:42:06.090 --> 00:42:11.949 were over the air or basic. Now, finally, I'd 00:42:11.949 --> 00:42:17.429 like to turn to essentially the overall picture 00:42:17.429 --> 00:42:20.389 in this case. Because really, what's been done 00:42:20.389 --> 00:42:23.269 here is there's an admitted antitrust violation. 00:42:23.949 --> 00:42:26.349 The district court doesn't deny it. He didn't 00:42:26.349 --> 00:42:29.250 issue any reasons for excluding the Zona tax 00:42:29.250 --> 00:42:32.679 model, which would have a loan. Offered support 00:42:32.679 --> 00:42:35.059 for the jury's verdict and damages up to one 00:42:35.059 --> 00:42:37.900 point three nine billion dollars He excluded 00:42:37.900 --> 00:42:41.199 the zone a single competitor model based on his 00:42:41.199 --> 00:42:43.699 assessment of whether streaming was feasible 00:42:43.699 --> 00:42:46.179 in a but for world when the jury had ample evidence 00:42:46.179 --> 00:42:49.019 of streaming of the Super Bowl dating back to 00:42:49.019 --> 00:42:52.480 2012 of streaming of other sports these were 00:42:52.480 --> 00:42:56.480 questions for the jury and Here let me stop you 00:42:56.480 --> 00:42:58.079 because you're over time. Do either of you have 00:42:58.079 --> 00:43:00.320 any other? questions. Thank you. Okay, thank 00:43:00.320 --> 00:43:08.670 you very much. Thank you. Go ahead. Thank you. 00:43:08.769 --> 00:43:10.449 So I want to stick to the cross -appeal. And 00:43:10.449 --> 00:43:12.110 there's really two issues on the cross -appeal. 00:43:12.110 --> 00:43:14.849 One is the class action. And one is whether there 00:43:14.849 --> 00:43:17.429 would be a new trial limited to damages or a 00:43:17.429 --> 00:43:19.750 complete new trial. On the class action, the 00:43:19.750 --> 00:43:21.789 challenge they fundamentally faced is there are 00:43:21.789 --> 00:43:24.070 real disparate interests in this class. And if 00:43:24.070 --> 00:43:26.670 you imagine a but for world where the way it 00:43:26.670 --> 00:43:29.769 works out is that the Cowboys and the Packers 00:43:29.769 --> 00:43:32.809 and the other popular franchises market sort 00:43:32.809 --> 00:43:35.519 of, you know, paid packages just to their out 00:43:35.519 --> 00:43:38.840 -of -market fans, which is a very plausible scenario, 00:43:39.400 --> 00:43:41.780 then those fans may be worse off because they 00:43:41.780 --> 00:43:43.360 may end up paying more for that package, they 00:43:43.360 --> 00:43:46.059 may pay less, we don't know how much it is, but 00:43:46.059 --> 00:43:48.079 then the person who bought Sunday Ticket because 00:43:48.079 --> 00:43:50.559 they wanted to watch as many out -of -market 00:43:50.559 --> 00:43:53.480 games as possible is materially worse off in 00:43:53.480 --> 00:43:55.719 that world. And of course there's another possibility 00:43:55.719 --> 00:43:57.960 that could happen in the but -for world, which 00:43:57.960 --> 00:44:00.219 is, and this really accounts for the uniqueness 00:44:00.219 --> 00:44:03.670 of the SBA, the NFL could simply You know, the 00:44:03.670 --> 00:44:06.250 Sunday ticket is sort of the tail on the dog 00:44:06.250 --> 00:44:08.349 anyways, and it's just not worth the hassle. 00:44:08.590 --> 00:44:10.190 So we're just going to go with our over -the 00:44:10.190 --> 00:44:13.019 -air broadcasts and nothing else. or nothing 00:44:13.019 --> 00:44:15.199 else except at sports bars. And if that happens, 00:44:15.280 --> 00:44:17.519 almost everybody in the class is worse off. And 00:44:17.519 --> 00:44:19.860 the only solution to that was it's all going 00:44:19.860 --> 00:44:22.039 to be free, and everybody gets all of their money 00:44:22.039 --> 00:44:24.380 back. And that solves all the class issues. But 00:44:24.380 --> 00:44:26.980 if you get rid of Rasher entirely, or even if 00:44:26.980 --> 00:44:29.219 you think Rasher's just not sufficiently reliable 00:44:29.219 --> 00:44:32.199 for Rule 23 purposes, then you need to decertify. 00:44:33.280 --> 00:44:38.840 If you get to the new trial issue, $191 .26 is 00:44:38.840 --> 00:44:41.199 explicable only by looking at those two numbers. 00:44:41.829 --> 00:44:45.090 quibble about whether 102 .74 is per subscriber 00:44:45.090 --> 00:44:47.809 or per class member. It doesn't matter. It looks 00:44:47.809 --> 00:44:50.909 to all the naked eye that they took the discount 00:44:50.909 --> 00:44:54.409 and made it damages. And Judge Gutierrez not 00:44:54.409 --> 00:44:57.510 only rejected that, but he said, this is my evidence 00:44:57.510 --> 00:44:59.849 that they didn't follow my instructions. And 00:44:59.849 --> 00:45:02.070 at that point, he is well within his discretion 00:45:02.070 --> 00:45:04.449 to order a new trial. And it has to be a new 00:45:04.449 --> 00:45:07.170 trial on everything, because A, he didn't limit 00:45:07.170 --> 00:45:09.650 the new trial grant under Rule 59, conditional 00:45:09.650 --> 00:45:11.210 though it was. He didn't limit it to damages. 00:45:10.989 --> 00:45:13.829 And the second thing is just as a practical matter, 00:45:14.170 --> 00:45:16.769 there's no way to limit it to damages if you 00:45:16.769 --> 00:45:18.630 had a retrial consistent with the Seventh Amendment. 00:45:18.969 --> 00:45:20.989 Because we don't know whether the jury found 00:45:20.989 --> 00:45:23.489 pooling and exclusivity is the problem, just 00:45:23.489 --> 00:45:26.670 exclusivity. Was it the NFL tax? We have no idea. 00:45:26.849 --> 00:45:28.110 So you couldn't just tell us. Did you raise the 00:45:28.110 --> 00:45:29.949 Seventh Amendment issue in your briefs? Yes. 00:45:30.389 --> 00:45:33.550 It's in our final, I think it's a gray -covered 00:45:33.550 --> 00:45:36.269 sort of surreply or cross -appeal reply brief. 00:45:37.150 --> 00:45:41.170 OK. Any other questions? Thank you very much 00:45:41.170 --> 00:45:43.590 We thank both counsel for their very helpful 00:45:43.590 --> 00:45:45.889 arguments in this matter and this case is submitted 00:45:45.889 --> 00:45:49.050 We are in recess until tomorrow morning. Thank 00:45:49.050 --> 00:45:50.130 you