[00:00:00] Speaker 03: Well, good morning. [00:00:01] Speaker 03: Welcome to the Ninth Circuit. [00:00:03] Speaker 03: And we have three cases set for argument today. [00:00:06] Speaker 03: We'd just like to remind everybody to pay attention to the time on the clock and ask for rebuttal time if you need it and try and wrap up as the time's expiring so we can keep everything on time. [00:00:21] Speaker 03: We'll go ahead and start with the first case set for argument today, which is Degusta versus American Petroleum Institute. [00:00:29] Speaker 03: That's case number 23-15878. [00:00:36] Speaker 03: Mr. Alioto? [00:00:44] Speaker 05: May it please the court, Joseph Maliotto Sr. [00:00:48] Speaker 05: for the appellants and the plaintiffs below, and with me on the brief, Ms. [00:00:53] Speaker 05: Theresa Moore and Ms. [00:00:55] Speaker 05: Tatiana Wallace. [00:00:58] Speaker 05: I would request Judge Nelson for a five-minute rebuttal. [00:01:02] Speaker 05: Okay, this is an action that was brought under Section 4 and 16 of the Clayton Antitrust Act. [00:01:11] Speaker 05: Also, by the way, under Section 12 for the jurisdictional issue, the charge is that the defendants have violated the antitrust laws, Sections 1 and 2 of the Sherman Act. [00:01:23] Speaker 05: We also made a claim that it was a violation of Section 7 of the Clayton Act on the acquisitions. [00:01:30] Speaker 05: The thrust of the case is that the defendants have combined and conspired to reduce reduction of oil throughout the United States, and that they did so initially in the American Petroleum Institute's offices in Washington, D.C. [00:01:53] Speaker 05: The facts are these, and they're practically undisputed. [00:01:58] Speaker 03: Counsel, we're aware of the facts. [00:02:00] Speaker 03: We don't need to go through that. [00:02:02] Speaker 03: I want to start with a question. [00:02:04] Speaker 03: Can you have an antitrust claim if we took out any actions by the president or his staff in this case? [00:02:14] Speaker 03: Yes. [00:02:15] Speaker 03: What would that be? [00:02:16] Speaker 05: Well, they combined prior to going to the president. [00:02:19] Speaker 03: Who? [00:02:20] Speaker 05: The American oil companies. [00:02:22] Speaker 05: We charged that they conspired prior to it and that they made their announcement on March 24. [00:02:29] Speaker 05: They did not go to see the president until April 3, 2020. [00:02:35] Speaker 03: And so prior to that... They take any action prior to meeting with the president because wouldn't they still have to take action in furtherance of the conspiracy under the Clayton Act? [00:02:46] Speaker 05: Yes, Your Honor. [00:02:47] Speaker 05: And the reason was because they tried to take action in the United States. [00:02:51] Speaker 05: But in March, March 6 and 7, as Your Honor knows, that's when the price war between the Russian oil companies and the Saudi Arabian oil companies, Ramco, they started a price war. [00:03:07] Speaker 05: And Mr. Putin started it because he was concerned about the shale oil companies in the United States. [00:03:16] Speaker 05: So in addition to what they were feeling in terms of any demand for COVID or otherwise, when they had the price war beginning in March, March 6, when Putin walked out, the production started to come. [00:03:31] Speaker 05: The very next day, Saudi Arabia, Aramco also released it. [00:03:36] Speaker 05: And so the oil was filling. [00:03:37] Speaker 03: No, we're well aware of that. [00:03:39] Speaker 03: The question is, did the defendants take action to work with Russia and Saudi Arabia outside of executive action by the president? [00:03:50] Speaker 03: No, they did not. [00:03:51] Speaker 03: Well, doesn't that answer the question then? [00:03:53] Speaker 03: Because how can we? [00:03:55] Speaker 03: I mean, you're ultimately seeking to bring the president as a co-conspirator into an antitrust claim based on a matter of foreign relations. [00:04:07] Speaker 03: What's your precedent that would allow us to do that? [00:04:10] Speaker 05: Well, as we said, Your Honor, this is a mirror image of the Saccone vacuum case. [00:04:15] Speaker 05: the price-fixing case at which government officials participated in the reduction of the oil at that time, and the Supreme Court said very simply, you know, that that means nothing, and that the only way you can approve a price-fixing agreement is by congressional sanction, of which they got none. [00:04:36] Speaker 05: Now, the president was not looked at to do anything other than as a facilitator because of his friends, namely Mr. Putin and also the head of the Saudi Arabian Oil Company. [00:04:49] Speaker 01: But isn't that the heart of foreign relations, that entrusted by the Constitution to the executive, not to Congress? [00:04:58] Speaker 05: No, Your Honor, it does not involve foreign relations. [00:05:02] Speaker 05: These are commercial companies solely doing, there is no congressional activity whatsoever. [00:05:08] Speaker 01: Companies that are essentially state owned and controlled, are they not? [00:05:11] Speaker 01: In terms of Russia and Saudi Arabia. [00:05:13] Speaker 05: We are not asking, Your Honor, for any interpretation [00:05:17] Speaker 05: of the Russian law, or the Saudi Arabia law, or whether or not either Saudi Arabia or Russia obeyed their law, we could care less. [00:05:26] Speaker 05: That wasn't the point. [00:05:28] Speaker 01: Your complaint lists them as co-conspirators, doesn't it? [00:05:32] Speaker 04: Certainly by... Judge Talman, it's Judge Gould on the video. [00:05:35] Speaker 04: Sorry, Judge Gould. [00:05:35] Speaker 04: But your complaint... I'm hearing you, if you could... I'm closer. [00:05:40] Speaker 04: into your microphone. [00:05:42] Speaker 01: Okay. [00:05:43] Speaker 01: Your complaint, Mr. Alioto, basically accuses them of being conspirators with the United States, even though they're not named. [00:05:53] Speaker 05: Actually, they did not. [00:05:54] Speaker 05: It was very different, Your Honor, and what they did is they had their price war going on. [00:06:01] Speaker 05: Okay, they were asked by the President personally, okay, not to do it. [00:06:07] Speaker 05: What they then did was very important to understand. [00:06:11] Speaker 05: They then said, we will reduce our production on the condition that the American oil companies do the same. [00:06:17] Speaker 05: Now, when the American oil companies agreed to that, they're violating our law, antitrust law, here in the United States. [00:06:25] Speaker 01: Well, I would agree with you were it not for the fact that none of this would have occurred had it not been for the intervention of the president and his emissaries in essentially brokering a deal with Saudi Arabia and Russia to end their price war if their terms and conditions were met. [00:06:48] Speaker 05: That is the same thing that happened in Sakoni, Your Honor. [00:06:51] Speaker 05: It was the Secretary of Interior, Mr. Ickes, and the Supreme Court was very clear on it. [00:06:57] Speaker 05: It says that it doesn't matter whether they approved it or they disapproved it or they were active in it. [00:07:03] Speaker 05: It doesn't matter. [00:07:04] Speaker 05: If you're fixing prices, you need congressional sanction, and none other, none other will be accepted. [00:07:10] Speaker 05: Now, as I said before, this is a mirror of Sakoni. [00:07:16] Speaker 05: The lower court didn't even mention Soconi. [00:07:19] Speaker 05: The defendants mentioned it in one line. [00:07:22] Speaker 05: The Soconi is the classic case by the Supreme Court, and the Supreme Court needs to be respected and abide by and the precedents that they set until the Supreme Court says otherwise or until Congress says otherwise. [00:07:37] Speaker 05: It is the law and it should be followed. [00:07:40] Speaker 05: And it was disregarded in the court below. [00:07:42] Speaker 03: Well, counsel, so Saccone in your mind only addresses the political question doctrine, or does it also address the North Pennington doctrine? [00:07:53] Speaker 05: No, it does not. [00:07:55] Speaker 05: The North Pennington doctrine would be whether to pass a law or to enforce a law. [00:07:59] Speaker 05: They didn't ask that. [00:08:01] Speaker 05: We put in the complaint, if you take it as true, that they went in there, they wanted no mandate. [00:08:07] Speaker 05: They wanted no political action. [00:08:11] Speaker 05: No diplomacy. [00:08:12] Speaker 05: All they wanted was to ask their friends not to continue the price war. [00:08:20] Speaker 05: But that was not enough for those guys. [00:08:23] Speaker 05: When they made the demand, we'll do it. [00:08:26] Speaker 05: We'll cut our reduction. [00:08:29] Speaker 05: But you have to do it too. [00:08:31] Speaker 05: And when the Americans agreed to that, they knew that that was illegal to do that. [00:08:37] Speaker 05: And they agreed, and then they cut their production. [00:08:39] Speaker 04: Let me ask the counsel, Judge Gould, if I could interject my question. [00:08:45] Speaker 04: How can we comment on what you just said in an opinion without intruding on the executive branch function? [00:08:56] Speaker 05: The powers, of course, of the executive branch are clear, Your Honor. [00:09:00] Speaker 05: And when the Supreme Court and Soconi said, [00:09:04] Speaker 05: that you must go to get congressional sanction. [00:09:10] Speaker 05: not executive, not executive work or otherwise. [00:09:14] Speaker 05: You must have congressional sanction. [00:09:17] Speaker 05: Otherwise, even if an official is involved, in this case, it happened to be the president who originally thought that the price drops were very, very good. [00:09:27] Speaker 05: He changed his mind after the meeting with all of the executives. [00:09:31] Speaker 05: But the Supreme Court has been extremely clear. [00:09:35] Speaker 05: It says none other. [00:09:36] Speaker 05: It must be congressionally approved. [00:09:39] Speaker 03: Council, how do you gather that? [00:09:42] Speaker 03: Because if you look at the allied tube and conduit corporation case [00:09:48] Speaker 03: The Supreme Court said that concerted efforts to restrain or monopolize trade by petitioning government officials. [00:09:56] Speaker 03: It doesn't say legislative officials. [00:09:59] Speaker 03: It doesn't say, it doesn't put any caveat that you're now saying. [00:10:03] Speaker 03: It says by petitioning government officials are protected from antitrust liability. [00:10:09] Speaker 03: I mean, would you take the same position if it was a regulation as opposed, I mean, you must [00:10:15] Speaker 03: accept the fact that seeking legislation or seeking a regulation from the executive branch would be covered under nor pennington don't you no because nor pennington is very specific it's for the enforcement of a law that exists or seeking to have a law that is that is what nor pennington but you wouldn't even think that nor pennington extends to executive uh... agency rulemaking [00:10:43] Speaker 05: if they make some rule. [00:10:45] Speaker 05: Listen, Your Honor, if you please. [00:10:47] Speaker 05: No, just answer the question. [00:10:49] Speaker 05: I did. [00:10:49] Speaker 05: I said absolutely no. [00:10:50] Speaker 03: You say no. [00:10:51] Speaker 03: Okay. [00:10:52] Speaker 05: No, if the executive, there's nothing written in this case. [00:10:57] Speaker 05: Nobody, no agreements is written. [00:11:00] Speaker 05: These are strictly commercial companies. [00:11:03] Speaker 05: That's all it is. [00:11:05] Speaker 05: But I must direct Your Honor's attention to Saccone. [00:11:08] Speaker 05: The court said, for Congress has specified the precise manner and method of securing immunity. [00:11:15] Speaker 05: None other would suffice. [00:11:17] Speaker 05: And they go on to say price fixing without congressional sanction is illegal per se. [00:11:24] Speaker 01: Mr. Ali, let me ask you a question, hypothetically. [00:11:29] Speaker 01: If the president had acted in order to reduce the price of oil so that he could replenish the national strategic reserves, which he has the authority to do, would your position be that if the oil companies agreed to do that, they would nonetheless be violating the antitrust laws? [00:11:52] Speaker 05: No, Your Honor, and that is a hypothetical, because what happened, in fact, as we put in the complaint, is that originally the President said, let's buy oil at that low amount. [00:12:05] Speaker 05: Then he had the meeting, and then he didn't go forward with it. [00:12:08] Speaker 05: The United States did not buy oil at that amount, but instead allowed the companies to put their oil in our reserve. [00:12:17] Speaker 05: And so to take the oil off the line. [00:12:19] Speaker 01: But doesn't that have, isn't there a national defense component to having greater quantities of oil in the National Strategic Reserve? [00:12:31] Speaker 05: Yes, and it should have been American oil and not the private interest oil. [00:12:36] Speaker 01: Well, I guess my hypothetical assumes that it really doesn't matter who's paying for it as long as the oil is there. [00:12:45] Speaker 05: It was there not for the purpose of defense, Your Honor. [00:12:48] Speaker 05: It was there to take the oil off the market. [00:12:50] Speaker 01: Well, you say that, but... I mean, if the oil is there, it is available in the event of an emergency for the government to draw on, isn't it? [00:13:01] Speaker 05: This is one of the problems. [00:13:03] Speaker 05: Everybody goes outside to complain, Your Honor, but the fact of the matter is, is that because they allowed the private companies to put oil in there instead of buying it, later the private companies, Phillips, Phillips began to sell to India and China and other places, regardless of the position of the United States. [00:13:24] Speaker 05: So they took control of it rather than the United States. [00:13:28] Speaker 05: I believe, Your Honor, I believe if I can, [00:13:31] Speaker 05: I only have two minutes left, so I don't get to five minutes. [00:13:35] Speaker 05: But I believe that it is very clear that the Soconi decision covers all of these. [00:13:44] Speaker 05: The Secretary of the Interior, the administration of Franklin Roosevelt, the court made it very clear, if you're going to fix prices, you have to have congressional sanctions. [00:13:57] Speaker 05: And they've showed them how to do it. [00:13:59] Speaker 05: But that's the law, and it has to be respected. [00:14:02] Speaker 05: It is precedent, and it must be followed. [00:14:05] Speaker 05: Thank you. [00:14:06] Speaker 02: Okay. [00:14:06] Speaker 02: Thank you, counsel. [00:14:06] Speaker 02: We'll give you the time for rebuttal. [00:14:08] Speaker 02: We'll hear from opposing counsel. [00:14:22] Speaker 00: Thank you. [00:14:23] Speaker 00: May it please the court. [00:14:24] Speaker 00: I'm Ginger Anders on behalf of all at police. [00:14:26] Speaker 00: But to the extent that the court has questions specifically for energy transfer, which filed a separate brief, Danielle Morello is at council table. [00:14:33] Speaker 00: So the central allegation in this complaint is that the president of the United States entered into a sovereign international agreement with Russia and Saudi Arabia to reduce those three nations oil production and raise prices at the beginning of the pandemic. [00:14:45] Speaker 00: The complaint tax on a few conclusory allegations. [00:14:48] Speaker 03: Say agreement. [00:14:49] Speaker 03: There was a formal agreement that [00:14:52] Speaker 03: that was reached or was it an informal agreement that was reached? [00:14:55] Speaker 00: I don't think there's any written agreement, but according to the complaint- That changed. [00:15:00] Speaker 03: You're right. [00:15:00] Speaker 03: So the complaint says there was an agreement reached. [00:15:03] Speaker 00: Right. [00:15:03] Speaker 00: The complaint alleges that there was an agreement between the President, Russia, and Saudi Arabia, and we see that in a lot of the paragraphs of the complaint. [00:15:10] Speaker 00: For instance, paragraph 47. [00:15:11] Speaker 00: The complaint says that Trump called Russia and Saudi Arabia and, quote, promised that the American oil companies would reduce their production of oil to meet the production limitations pledged by Russia and Saudi Arabia, all with the purpose and intent of raising the price of oil. [00:15:24] Speaker 00: I think that very clearly alleges an agreement between the United States and foreign sovereigns, pursuant to which a term of that agreement was that the defendants would reduce production. [00:15:35] Speaker 03: Is your case buttressed by the fact that, I mean, these are state [00:15:40] Speaker 03: corporation Russia. [00:15:43] Speaker 03: I mean, President Trump wasn't negotiating with corporations. [00:15:46] Speaker 03: He was negotiating sovereign to sovereign, right? [00:15:50] Speaker 00: That's the allegation in the complaint, yes, that he was calling heads of state in Russia and Saudi Arabia. [00:15:57] Speaker 00: So I think it's very clear that this is a foreign policy judgment by the president to negotiate. [00:16:03] Speaker 03: Would it be different if he wasn't calling heads of state, but he was calling the president of the corporation? [00:16:09] Speaker 03: I don't know how that would work in this particular circumstance. [00:16:13] Speaker 03: But would it be different if he was not calling ahead of state? [00:16:19] Speaker 00: I don't think it would be. [00:16:20] Speaker 00: As Your Honor suggested, I think those [00:16:23] Speaker 00: States run their oil production through state-owned companies and to the extent that the allegation was that through those companies Or those companies actions were reflecting sovereign decisions to limit oil production then I think for active state purposes We'd have the same result for political question purposes. [00:16:40] Speaker 03: We'd also have the same result So where would the outer limits of what your position is be? [00:16:45] Speaker 03: that would be if the president were to call a private the CEO of a private corporation on behalf of [00:16:54] Speaker 03: a U.S. [00:16:54] Speaker 03: company that might not be covered by the political doctrine? [00:17:02] Speaker 00: That's exactly right. [00:17:03] Speaker 00: So the political question doctrine looks to whether the court is being asked to second guess a policy judgment that is textually committed by the Constitution to the president. [00:17:10] Speaker 00: So as a practical matter, all of these cases involve foreign policy decisions, military decisions, and I think that's [00:17:17] Speaker 00: That's exactly what we have here, because of course the complaint is saying that the president made a foreign policy judgment to enter into an agreement with Russia and Saudi Arabia, and that a term of that agreement should be that the defendants would reduce production in order to stop the press war. [00:17:33] Speaker 03: Let's assume that these were private corporations and the president called the CEOs of private corporation. [00:17:38] Speaker 03: You might not have the political doctrine. [00:17:43] Speaker 03: You might also not have, under that scenario, would you still have the head of state or the state action? [00:17:51] Speaker 03: Active state doctrine. [00:17:53] Speaker 00: So I think if the president were calling private companies domestically, then we wouldn't have a foreign policy overlay at all. [00:17:59] Speaker 03: Would we still have a North Pennington problem under my hypothetical? [00:18:04] Speaker 00: Yes, there may well be a North Pennington problem, because the defendants allegedly have lobbied for the president to take this action. [00:18:11] Speaker 00: And to the extent that the plaintiffs alleged injuries arise from that governmental action, the North Pennington would bar them. [00:18:18] Speaker 03: So the plaintiff's counsel is arguing that North Pennington only applies to congressional action, not to executive action. [00:18:26] Speaker 03: That had never been. [00:18:28] Speaker 03: I'd never understood it to be that limited. [00:18:29] Speaker 03: What is there? [00:18:30] Speaker 03: Is there basis? [00:18:31] Speaker 03: What's the basis for it to be read as broadly as you're reading it? [00:18:36] Speaker 00: I think it has been applied in the case of executive action. [00:18:40] Speaker 00: So Pennington itself. [00:18:41] Speaker 00: that case concerned executive action by the TVPA that the defendants were lobbying for. [00:18:45] Speaker 03: And that was regulatory action or non-regulatory action? [00:18:47] Speaker 00: That was regulatory action. [00:18:48] Speaker 00: There are other cases that have applied this in the context we cited in our brief, for instance, seeking patents, which, again, is an agency but is not an agency regulating. [00:18:57] Speaker 00: It's an agency taking an action. [00:18:58] Speaker 03: It was still some sort of action. [00:18:59] Speaker 03: It wasn't just executive negotiation. [00:19:05] Speaker 03: Although I guess the point is they've still alleged some action because they've alleged an agreement. [00:19:10] Speaker 00: I think that's exactly right. [00:19:11] Speaker 00: The president has taken an official act here, and in his capacity as president of the United States, he has entered the United States into a sovereign agreement. [00:19:19] Speaker 00: I think all of the rationale of Nora Pennington applies with full force to that kind of action, just as it applies to legislative or regulatory action. [00:19:27] Speaker 00: Because of course, what Nora says about all this is that the point is that once the government has decided, based on lobbying, that a particular course of official action is in the interests of the United States, the Sherman Act doesn't speak to that. [00:19:40] Speaker 00: action and to the extent that the plaintiff's injuries arise from it, the government ought to be able to act in the public interest, even if that's anticompetitive. [00:19:47] Speaker 00: I think that applies in full here. [00:19:48] Speaker 03: Can you address their reliance on the Soconia case? [00:19:52] Speaker 03: I hadn't focused on that case perhaps as much as I should, so I'm going to go back and do that, but I'd like to hear what you have to say about it. [00:19:59] Speaker 00: Sure, I think applying the political question doctrine is entirely consistent with Saccone here. [00:20:04] Speaker 00: I understand that case to say, essentially, that price-fictioning agreements are, per se, illegal, and that Congress can immunize that as particular actions, as a substantive matter. [00:20:15] Speaker 03: But of course, what's going on here is- Council seemed to read some language from that that suggested that it was Congress acting in that case. [00:20:25] Speaker 03: So I guess the question is whether [00:20:28] Speaker 03: You agreed that it was Congress acting in Soconia. [00:20:30] Speaker 00: Yes. [00:20:31] Speaker 00: And so the distinction I would make is that if we were talking about substantive antitrust immunity, you've done this thing, but we're going to immunize you, Soconia suggests that that should be done by Congress. [00:20:42] Speaker 00: But that is not what's going on here when the political question doctrine is being applied. [00:20:46] Speaker 00: So the point of the political question doctrine here is that because plaintiffs [00:20:49] Speaker 00: are asking the court to second guess a presidential foreign policy decision. [00:20:53] Speaker 00: The Article III jurisdiction of the federal courts is limited. [00:20:58] Speaker 00: The courts don't have the authority to second guess a foreign policy judgment that is textually committed to the president. [00:21:05] Speaker 01: So is your distinction between domestic and foreign [00:21:10] Speaker 01: In other words, if the agreement is negotiated by an executive branch official with domestic companies, it requires congressional approval of immunity, whereas here we're dealing with an agreement that involves foreign powers negotiated by the president in his role as the policymaker for foreign policy of the country. [00:21:32] Speaker 00: I guess I'm making a couple distinctions, and that's relevant to it. [00:21:35] Speaker 00: So the first thing I would say is that what Sakoni is saying is that if you're going to have substantive antitrust immunity, so in other words, you know, you have done something that violates the antitrust laws, but as a substantive matter, we're going to say you're not liable for that. [00:21:50] Speaker 00: That's something that Congress does in the exercise of its law-making power. [00:21:53] Speaker 01: But I think what Spectrum Stores- If it involves US actors, right? [00:21:58] Speaker 01: Only US actors, not foreign governments. [00:21:59] Speaker 00: Right. [00:22:00] Speaker 00: There's no foreign policy overlay. [00:22:01] Speaker 00: So once there's a foreign policy overlay and the president is making foreign policy judgments, that's where the political question doctrine comes into play. [00:22:08] Speaker 00: That's what this court said in Corey versus Caterpillar. [00:22:10] Speaker 00: It's what the Fifth Circuit said in Spectrum Stores. [00:22:13] Speaker 00: So essentially, once a Sherman Act claim is [00:22:15] Speaker 00: asking the courts to implicitly decide the propriety of an executive judgment about whether to enter into an international agreement, then the court's authority doesn't extend so far, and that there's not jurisdiction over that claim. [00:22:30] Speaker 01: And your position would be that the domestic oil companies acting in furtherance of that presidential negotiated agreement are essentially immunized from antitrust liability. [00:22:43] Speaker 01: Maybe not immunized, they are protected by the political question doctrine because that umbrella covers their actions in furtherance of the agreement that the president has negotiated. [00:22:59] Speaker 00: Yes, I would say that the political question doctrine bars adjudication or relieves the court of jurisdiction because the nature of the claim is such that the court cannot adjudicate defendants liable without also implicitly saying that the president should not have entered into this international agreement. [00:23:15] Speaker 01: So it's a subject matter jurisdiction question versus a decision on the merits of an antitrust law. [00:23:21] Speaker 00: Exactly. [00:23:21] Speaker 00: That's what this court said in Corey versus Caterpillar. [00:23:24] Speaker 00: The political question is a matter of subject matter jurisdiction. [00:23:28] Speaker 00: And I think in Corey, the court used exactly the same reasoning to say, you know, the plaintiff is alleging that these sales by Caterpillar are illegal, they're wrongful, but those sales were approved and financed by the United States. [00:23:41] Speaker 00: There is no way the court said to hold that Caterpillar was liable for those sales without also saying that the United States should not have approved those sales. [00:23:48] Speaker 00: So I think it's exactly the same logic here under Corey. [00:23:53] Speaker 00: So if I could just address the separate conspiracy that my friend on the other side referred to, the sort of antecedent conspiracy. [00:24:03] Speaker 00: This is in paragraph 16 of the complaint. [00:24:06] Speaker 00: So this is the allegation that in March 2020, the defendants, quote, agreed to take any surplus oil off the market and cut production. [00:24:13] Speaker 00: That is a conclusory assertion of an agreement that under Twombly cannot be taken as true. [00:24:18] Speaker 00: It is almost word for word for the sort of legal conclusion that Twombly said is something that is just disregarded because it's just a bare allegation. [00:24:26] Speaker 03: And there is nothing- But they've said that they could amend the complaint now because of some new information that they got from, I guess, Kushner's book. [00:24:36] Speaker 03: Is that right? [00:24:37] Speaker 00: So they moved to amend the complaint based on that. [00:24:39] Speaker 03: And that was denied for futility. [00:24:41] Speaker 03: But they were going to expand upon this. [00:24:43] Speaker 03: What you are saying is, and the district court found, was a conclusory statement, right? [00:24:46] Speaker 00: So I don't think they were going to expand with respect to, or I know that they weren't going to expand with respect to the defendant's private conduct. [00:24:53] Speaker 00: So I think there's no reason to think here. [00:24:56] Speaker 03: That there's additional allegations. [00:24:57] Speaker 00: That there's any additional allegations that they could make consistent with their rule 11 obligations. [00:25:02] Speaker 03: We would not have to reach that question if we accepted either any of the three jurisdictional argument, the North Pennington argument, the political question doctrine, or the act of state doctrine, right? [00:25:15] Speaker 00: So we're not contending that those doctrines independently are this. [00:25:18] Speaker 03: Oh, they wouldn't apply to this. [00:25:19] Speaker 03: That's why you're addressing this. [00:25:20] Speaker 03: So we still have to address this issue no matter what. [00:25:23] Speaker 00: Right. [00:25:23] Speaker 00: And I think that the most the sort of most straightforward way that the court could do this is exactly the same way the Fifth Circuit did in spectrum stores. [00:25:30] Speaker 00: So there is a very similar complaint. [00:25:32] Speaker 00: And what the court said was we are affirming dismissal on political question grounds. [00:25:36] Speaker 00: But as part of our jurisdictional analysis, we look at the allegations of the complaint to see what they say that complaint like this one. [00:25:42] Speaker 00: attempted to allege a separate, all-private conspiracy among only the non-sovereign defendants. [00:25:48] Speaker 00: And what the court said was, we look at that allegation, it's conclusory under Trombley, so we disregard it because it's insufficient. [00:25:54] Speaker 00: And therefore, the complaint only talks about this sovereign agreement we can affirm the dismissal on political question grounds. [00:26:01] Speaker 00: So that would be a way in which this court could affirm the dismissal on political question grounds. [00:26:07] Speaker 00: But just to go back to the fact that they, I think, can't make any [00:26:10] Speaker 00: can't allege anything with respect to the private defendants. [00:26:14] Speaker 00: They had an opportunity, they moved to amend, they submitted a proposed complaint. [00:26:18] Speaker 00: The only new allegations in that complaint concern Jared Kushner's negotiation of the agreement between the United States, Russia, and Saudi Arabia that we've been talking about. [00:26:26] Speaker 00: So it ran straight into the political question doctrine and these other doctrines. [00:26:30] Speaker 00: They have never suggested that they would be able to add allegations about what the private defendants did in March 2020 despite [00:26:38] Speaker 00: that opportunity to amend the complaint despite seeking discovery, all the discovery they sought was of Jared Kushner. [00:26:44] Speaker 00: So again, confirming that for the plaintiffs, this suit is about the executive action fundamentally. [00:26:50] Speaker 00: And I think the district court looked at that and said, I see, based on this course of litigation, that there are no allegations that the defendants and the plaintiffs could make. [00:26:58] Speaker 03: Would we need to address the personal jurisdiction over energy transfer? [00:27:02] Speaker 03: if we adopted the reasoning that you're talking about just now? [00:27:10] Speaker 00: So no, I don't think so. [00:27:11] Speaker 00: I think we acknowledge that the personal, an argument that there's no personal jurisdiction is barred by circuit precedent. [00:27:17] Speaker 00: We're not asking for that to be overruled. [00:27:19] Speaker 00: So as this comes to the court, there is. [00:27:21] Speaker 03: But there is a circuit split on that issue, right? [00:27:25] Speaker 03: There's a circuit split on whether [00:27:28] Speaker 03: whether energy transfer, whether there would be basically national jurisdiction in the federal courts over energy transfer. [00:27:37] Speaker 03: Ninth Circuit has said yes, but as I understand it, the Seventh Circuit, the Second Circuit, and the D.C. [00:27:43] Speaker 03: Circuit have said no, that's not true. [00:27:46] Speaker 03: You still have to find jurisdiction separate from just the Clayton. [00:27:51] Speaker 00: That may well be. [00:27:52] Speaker 00: We haven't asked here for this court to reconsider its own precedent for purposes of this case because we think it's very, very clear that this claim is, that this complaint should be dismissed on multiple other grounds. [00:28:04] Speaker 00: So those are the bases that we're pressing here. [00:28:08] Speaker 00: Okay. [00:28:15] Speaker 00: If the court has no further questions. [00:28:17] Speaker 03: I think Judge Gould, do you have any other questions? [00:28:20] Speaker 04: I have no question. [00:28:21] Speaker 03: OK. [00:28:21] Speaker 03: Thank you, counsel. [00:28:23] Speaker 03: We have a little bit of time for rebuttal. [00:28:32] Speaker 05: Thank you, Your Honor, and may it please Your Honors. [00:28:35] Speaker 05: No one is above the law. [00:28:38] Speaker 05: I know President or anybody else walks around with an umbrella of immunity. [00:28:43] Speaker 01: It's not a question of immunity, Mr. Aliotta, it's a question of whether or not we have the power, subject matter jurisdiction, over the claim. [00:28:52] Speaker 05: The court system, the judiciary has always made it plain that the court has the power with regard to interpreting the Constitution and the laws of the United States. [00:29:04] Speaker 05: And the law of the United States is the antitrust laws and not as the policy of the United States. [00:29:09] Speaker 01: But the Constitution itself provides the authority of the President to conduct foreign policy. [00:29:17] Speaker 01: And the Supreme Court has been very clear that we do not get to second-guess the executive branch when it comes to matters of promulgating foreign policy. [00:29:26] Speaker 05: This isn't foreign policy, Your Honor. [00:29:28] Speaker 05: This is a straight, crude, and naked agreement that they don't put in paper, that they don't sign, and when they – and when they said, OK – But you're not suggesting that every conspiracy requires a written agreement, are you? [00:29:43] Speaker 01: I mean, we see conspiracies all the time that are unwritten. [00:29:46] Speaker 05: I am very much in the notion that there is no signed agreement necessary, because in this case, when there is none, you go on the facts, and the facts are that they agreed to cut their production as a condition of these two other people, other companies, not nations, companies, [00:30:08] Speaker 05: Uh, stopping their price war. [00:30:10] Speaker 05: We don't care about Russian war, uh, law. [00:30:13] Speaker 05: We don't care about Saudi Arabia. [00:30:16] Speaker 03: That's not really the issue. [00:30:17] Speaker 03: The issue here seems to be that the president called heads of state to reach an agreement. [00:30:22] Speaker 03: I don't understand how we could weigh in on that. [00:30:25] Speaker 05: I would ask only this, uh, your honor. [00:30:29] Speaker 05: The Saccone case cannot be reversed by this court. [00:30:33] Speaker 03: No, I totally agree with you. [00:30:34] Speaker 03: We'll go look at that definitely. [00:30:36] Speaker 05: Okay. [00:30:37] Speaker 05: So they deal with the governmental officials getting into these issues, and they reject it. [00:30:46] Speaker 05: They say that Congress alone, without congressional sanction, price-fixing is illegal, per se, the Supreme Court said. [00:30:55] Speaker 05: Okay. [00:30:56] Speaker 05: I want to say one thing. [00:30:57] Speaker 05: I think that I missed one point. [00:31:00] Speaker 05: Your honor said that I don't think that nor Pennington can apply with the president. [00:31:05] Speaker 05: The president, if you go to the president and you seek him to lobby for you either to get a law or to enforce a law, which is his business, that is obviously protected. [00:31:17] Speaker 03: Okay. [00:31:18] Speaker 03: Thank you, counsel. [00:31:19] Speaker 03: Thank you to both counsel for your arguments. [00:31:21] Speaker 03: The case is now submitted.