Since Brown Shoe Co. v. United States, 370 U.S. 294 (1962), this Court has held that antitrust market definition must reflect commercial realities. That principle requires consideration of what Brown Shoe called “practical indicia” about a proposed market, including evidence about distinct customers and prices, industry custom, specialized distribution channels, and switching constraints.

In this case, the record has some evidence of cross-shopping and substitution by marginal consumers in the market for disposable medical supplies. The record also has evidence that a distinct channel and customer group—a classic antitrust submarket— faces distinct competitive conditions, shaped and exploited by Vizient’s power as a large group purchasing organization. That record presents these issues for consideration:

1. Whether a proposed submarket must be rejected if evidence shows that some customers can shift their purchases to other channels, even if other evidence establishes the unique competitive constraints that face another group of customers.

2. Whether a proposed submarket may be defined by sales that are made through an intermediary- controlled purchasing channel, when the market includes multiple suppliers and is not limited to a single brand or seller.

1. Whether an unconditional guilty plea waives appellate review of a preserved claim that the prosecution was barred on the face of the charging record— a claim that goes to the Government’s authority to convict rather than to the defendant’s factual guilt.

2. Whether the courts of appeals are divided over whether an unconditional guilty plea waives a preserved claim that the government lacked authority to bring.

3. Whether the court of appeals applied the wrong unit of analysis to the statute-of-limitations claim by examining the Second Superseding Indictment in isolation, when the limitations bar appears on comparison of the successive indictments because the Second Superseding Indictment materially broadened the timely Superseding Indictment and cannot relate back.

PARTIES TO THE PROCEEDING

The parties to the proceedings in the Eleventh Circuit Court of Appeals include the Respondent, United States of America and Petitioner Yesid Avila-Diaz. There are no parties to the proceedings other than those named in this petition.

Pursuant to Rule 29, undersigned court-appointed counsel for Appellant Yesid Avila-Diaz certifies that no persons or entities have an interest in the outcome of this case.

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I. Whether the Supremacy Clause and federal preemption principles are violated when a state utility commission mandates the installation of an advanced metering device without an affirmative customer request, in conflict with federal statutes—including the Public Utility Regulatory Policies Act of 1978 (PURPA), the Energy Policy Act of 2005 (EPAct)—and with state statues such as the Pennsylvania Electricity Generation Customer Choice and Competition Act (Act 138 of 1996, amended by Act 129 of 2008) (“Customer Choice Act”) that require customer initiation.

Il. Whether compelling installation of smart meters without customer consent or request, and replacing statutory “customer choice” requirements with “opt-out” or “opt-in” schemes, violates constitutional protections under the Fourth, Fifth,

This case involves an important question of federal law in which the Eleventh Circuit has recently sided with the Fifth and the Tenth Circuit and split from several of its sister circuits, including the First, Second, Sixth, and D.C. Circuit:

Does a district court’s violation of 18 U.S.C. § 8553(c)(2) affect a

defendant’s substantial rights under plain error review, given that the

right to meaningful appellate review is itself a “substantial” right?

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