case number one four dash three seven five three with cross appeal one four dash three eight three to cram park in the rogers group inc or arguments not to exceed fifteen minutes per side mr m through more than a decade of litigation previous trip to this court and ultimately a unanimous jury verdict in my client's favor for fifteen point six million dollars as you know that verdict  that decade of litigation essentially were wiped out post trial by the judge based on something everyone in this case knows is actually false and that is the idea that cram park my client had sold the right to bring this entire lawsuit way before it even began in two thousand and one how do we know that's not true well we know it's not true because we have the document governing that sale we have the asset purchase agreement and everyone's had it it's an ambiguous it's on page ten of the brief and it shows cram park indeed retain the right to bring this lawsuit not really a big deal in the early parts of this case and we know roger's group knew right because they never even made an argument all along that the lawsuit was sold they never moved under rule seventeen to say they were being sued by the wrong party because they had the same document they had the same document in two thousand seven that mr seventeen's definition they discussed it everybody knew that while hard drives which is now crammed park had sold all of its assets yes essentially everything everybody also knew it had clearly retain the right to bring this suit so how in the world after the jury's unanimous verdict in crown park's favor was this all thrown out well it's all about article three standing in the truth is article three standing just has to do with the simple question of whether the plaintiff was injured by this defendant and whether in article three court to use the language of justice ginsburg in the case of a colorful way to describe this what happens is it land to guess is about the best example of this this is the fourth circuit unpublished decision cited by rogers and that the magi strate judge relied on what happens in these cases is the courts actually kind of come to the right outcome because what happens is the plaintiffs in those cases have really sold their rights the lawsuit it landed yes really did sell it's right the atlanta gas contract says you sold all the claims so the defendant there early on in the litigation says you know we're being sued by the wrong people the court looks at the document and they say you're right the problem is it's really a dismissal or a summary judgment says you don't have standing when it's in the rule seventeen exactly loppy language there and that it still falls elsewhere and that's the drive by ruling they throw the language not really a big deal for the parties in that case because the outcomes are correct that person can't sue they did sell the claim were it becomes really a disaster and an injustice is a situation like this and like in our boy itself are brought so also involved undoing of the entire verdict on what was allegedly jurisdictional grounds and as the court unanimously pointed out you know that's really not correct it's sloppy use of the word jurisdiction that's exactly the sort of perfect storm that occurred here and here we are post trial everyone knows the truth this one's marked defendant to exhibit for trial was not admitted at trial but it tomorrow everyone knows about it and this was the ultimate tactic because everyone knows article three is sort of this giant magical thing you can raise it any time it's never waived and here's the other part when you're talking about article three injury you need quote because i do recall is that specific to the injury in fact element of standing or is that also say that redress ability has to be shown you know at every stage including a trial my reading is it actually goes to all of them and the key part about that this is the other part of where the problem lies and some of the sloppiness is the redress ability and i mean that's really what's at issue here there's no question you're right i mean your client i mean looking at the trial to us i mean you know they suffered past tense and injury in fact and really i mean the only tricky part seems to be redress ability but before we get to that i mean i you know you say it's a to trial and he's he's contemplating a case where it's actually contested not one where it's first raised post trial and it would seem like no if it is contested yes you look at the trial record if it's not contested then perhaps we shouldn't be limited to the trial record because that frankly might be unfair to the player and i guess that's an issue for the other side to talk about but i don't know what do you mean i'm not so sure it's being misread the way you say well i think you know when you look at those cases like in frankly all the others and every single one roger cite that says you need to look at the trial testimony from different  curious i mean is there any such case where standing actually was not even mentioned until after truck well there are certainly cases where the idea of like article three standing is that is not mentioned too after a trial in our bodies one of them and that's where the court says time there's a problem is just like in on when the firemen or their environment environmental organisations suing and they say look we're harmed by this government regulation that has to do with tangential fact literally crocodiles in the nile literally and so the question is and what justice scalia is saying is do you have evidence that you were injured in the first place and that's the thing that gets tricky and they have to prove to trial and every single case that says that it's like that so i think the most straightforward reading in my mind is just that yeah you need to prove your injury trial here it's run of the mill contract promissory estoppel case of the second you get on the witness stand and say yeah it's me and they harmed me you're gone and then they can see this point you say it's really me and they harm me your gun and point this out in lieu if the if it's about direct conduct from the defendant to you it's pretty easy if your environmental group talking about harm to one of your members not being able to  t more difficult makes it tricky though is the assignment i mean suppose it is signed and i mean let's say hypothetically at a transaction where there are multiple companies that want to buy  and then you assign it to me and i'll take all the risk because i really want to buy the rest of the company and then cram park suze i mean the idea that money's going to cram park are redress ing in injury   what happens the day after they get the lawsuit crimper doesn't own it that's atlanta gas that you know the real seventeen get the right party right now why is there still article three stand because clam parcel for the injury not your addressability concern this is this is again i think helps explain why the magistrate judge got this so long because of the dress ability term starts to make you think oh and this is what rogers points on their brief oh this is no longer a redress of bill in article three cents because you sold the claim actually that's not how redress ability works under in all these cases now in our brief i pointed out in morse federal practice i said there's about sixteen cases they cite to explain what redress ability really is what it really is is more to the point the idea of whether it's actually speculative as to whether a court can in fact grant the relief that would make you whole that's really all it is so an example site six circuit decision i think it's called morrison someone about a school policy about discrimination and the policy is no longer in effect at some point as well a court can't reach rest that because there's nothing to fix luan how to redress ability a problem what can you do about the crime what can you do and the  the challenge of government regulation and you had to do with a suggestion of consultation with other entities that are doing these overseas things with these crocodiles etc scalia says look you have a not clear that the relief the courts can grant is actually going to fix what you want in this case if cram park sues the redress ability problem in terms of their injury is only whether a district court or frankly this court under its article three authority when it says judgment fifteen point six million is that redress ability satisfied real quick i'd like to ask you about your prejudgment interest argument i mean you calculate it promise but some of those damages as i understand it were damages that were based future profits or my mistake because those would not have been you know you're getting interest on those in the years before or they would have accrued right or happened right well ok and to be clear there's no future profits in terms of an expectation damage i don't think you saying reliance reliance i think the short answer is there if we break this down in the brief but there's ample evidence from that time that the jury had to look at to say how do we put hard drives crammed park in the position it would have been that's the reliance and structure and you got like three million immediately for the for the plant setting it up it would have gotten those monies later so why should they get interest on these dating back to the time of their i would say nearly the entire amount commune tributed to damages incurred at the time ok you have three million right off the bat related to he buys this new plant he's got to put a new road in ford center that's immediate out of his pocket  hardress pocket the other thing is you have the valuation of the company itself which was doing fine doing terrific and the expert testifies it was worth twelve million and now it's only worth four because of this that's an immediate devaluation the company we're talking about three million plus another five million right there the other thing is this company hard drives every single year for two decades is profitable and now they're going to do this venture or rogers backs out what happens they lose three hundred eighty three thousand the first year of the back out they lose almost four million the second year so that's also a media that's another four million so i'm doing my math quickly but i'm at about fourteen million of the whole ward to the extent there is some piece of that that has to do with the fact that they would have continued to make some money i would say it's possible but it may only be about a million over the fifteen that you know there's a high a low we site that says when you've figured this prejudgment interest out you just look at the da it accrues you know the date the jury said that there was you know a breach is this an issue that we need to resolve posed to remain and the district court to figure this out first instance yeah i mean i think  you definitely can resolve it i think that the law is clear enough i think i mean there are some back and forth in ohio law but if you look at the federal law unless we cite three very recent federal cases that say you do get pre judgment interest so yeah that's what i'm saying i mean i thought your brief just asked us to find that you're entitled to pre judge with interest and i was just reading that rate to see if you request to remain on it it's kind of us but i thought i thought it was implied that you wanted us to find i mean if we agreed with you that you're entitled to prejudgment interest and the remedy would be a remand in the district court would calculate well yeah i understand the concern i would say very briefly we certainly asked this court to say we're entitled to prejudge an interest we good afternoon afternoon may please the court my name is david cuticle and i'm here on behalf of rogers group as counsel in new discussed the issue here is whether as knew him requires the plaintiffs below proved their burden that they had standing by evidence produced at trial i have to ask why did take ten years to bring this up this case came to this when talks about at every stage of the case what is the manner and quantum of proof that they have to bring forward to get to get over the birth the hurdle at that time ok contracts well or all evidence first tax later the fact matter is the only evidence in the record the trial record of the contract was his test i guess and that point again i would say lou hahn that sentence that clause of that sentence i think would contemplate cases where the defendant or somebody has raised the issue of standing earlier we won walks through the procedural phases of a case and says that each phase in i think we were on was twelve b six the plaintiff has to come forward with the evidence which implies that somebody is is contesting it as they did in little ol let's look and in a case where you don't mention a peep about this let's look at seems different to say actually even though we never mentioned it in ten years you're limited to what you said a trial we can't look at this clause here which i think obviously implies that there was no were there were the successor of interest to print two hard drives and we are the real party interest paragraph one of the complaint we can challenge at that time there's no basis and rule twelve a challenge that with respect to the summary judgment they make the same had it during discovery you certainly do know your honor summary judgement stage they haven't met the luan standard for standing at best the asset purchase agreement is ambiguous because the asset purchase agreement doesn't list the assets the choses of action one way or another the judge griffin i numerate swat is assigned it's just like the constitution article one it a numerate swats assigned right this is not among them now i  to bring the lawsuit and there's another close to it which is necessary for the winding up of the business well there's a question we think of fact as to what does that mean and the person who interpreted that free stuff well certainly but certainly why couldn't you make your rule fifty six argument they have no standing because again they have i will to make his deposition you get the same testimony you gave a trial you make your argument to the district judge i would rather than after trial unless it was really kind of gotcha i'm not saying it was your intention i disagree with that and i'm not saying it's your intention but it's the effect on your honor when the point is not raised until after the proofs close well we yes yes indeed and they had the opportunity to cure that if they wanted to by putting in the as a first group and they did not do that instead what they did is they told the judge something else ok but let me  scope it's a rule seventeen argument well in this this seems tendentious frankly your honor i disagree with that again the issue was whether they had the right to bright and the same problem arises  seventeen was certainly your honor issues with respect to real party and interest or certainly that's the image the rule the purpose of the rule started back in the thirty's when there was a split in particular property  equitable interests and it was to clear up that will used to be on the common law you could only go ahead and sue if you had the legal title rule seventeen says no you're the if the the admiral owner you go ahead is there this is the case so rule seventeen is directed to where both parties have an interest which is the right party to bring bring the suit and get also and i'm direct i'm if i may what i am is different your stance and standing is different and you never use the word standing in the rule fifty eight argument at any time is it too much to ask if you're making a standing argument rather than a proper party argument to use the word standing not the word proper card words proper party which is in fact what you use all your hon i think the argument could be fairly read to a standing because the because they were not proper because they had sold everything they did had no interest in this case and in fact there's tons of caseload out there that we cited including from this court which have said if you're an assignee or sign or scuse me and use the sign the case you no longer standing side of the edwards case the sprint case seems to be pretty tough for you on this point from the supreme court i mean they suffered an injury in fact past tense no question it was caused by your client no question the only question is redress ability and sprint takes this you know for better or worse takes this metaphysical view that if the injury itself is redress of all by some means in the court's power then redress ability is satisfied so and that's an ass in the case why isn't that reasoning as to redress ability binding that on us for the same issue here well i would disagree with your reading of the sprint case i think that case is consistent with a lot of other cases and where you have the cutting off of the interest like in edwards other other cases that we've cited from the tenth circuit the federal circuit schreiber for example is a good case where the individual had a patent he signed as bad in the courts as the time you signed his patent he doesn't have standing to sue on the patent anymore and with respect to those cases you know they are both case where it's case like that like lexmark none of those cases have criticized the cases that we're relying on the cases where there's an assignment that cuts off the lose the right to bring a lawsuit you have no injury once you say you sell the right to bring the lawsuit you don't have aggressively claim what case says well your honor i believe the cases that we've cited that like what a for example is one schreiber is another they actually said that there is the party that in fact suffered the injury for per for purposes of standing has not suffered an injury in fact you know what see what they've said is that that party no longer has a redress a billion jury well that's we're just see i'm not talking about i'm ok i'm i understand your argument about redress ability i think the problem is the supreme court has rejected it and sprint but but i was asking about injury in fact and and trying to you know so i mean it seems they did suffer an injury in fact that the hands of your client at least on their theory and really the only question regarding standing is redress ability isn't that a fair narrowing of the issue before us well certainly or a group that redress ability is an issue is that i mean we do agree that they satisfy injury in fact they satisfy causation because that's those things actually happened in the world w to i don't think we've raised causation is an issue i think our point is that i'm trying to clean up the analysis that we work to do if you agree that they satisfy those two elements we just have to look to redress ability i don't agree that they've satisfy the injury requirement i don't agree that they satisfy the ok and again your honor the issue for us is all these cases that we've talked to you about where the assignment cuts off the right in all these cases which talk about standing the criticisms of drive by jurisdiction have basically taken the analysis like in the lexmark case where they say you know if you don't meet the statutory requirements you don't have a cause of action that's rule twelve b six motion that's not a to be one motion this is different this is about interest to have an injury and to be redressed those are pure standing requirements and courts have time and time again you standing including the this this court in the edwards case now i want to address the issue of promissory estoppel you did ask about that sort of like to have an opportunity to talk about that in particular on the pre judgment interest the issue generally is a failure proof here again there's no issue with respect to whether there's no evidence but specter a promise the jury found that the they writing was in a contract so that's not a promise that's good enough to rely on the promissory estop it's also they come in with two other things one is the word great mr stump gets a call from mr sabatini mr sabatini's says i'm going to buy this plant and mr stone says great well that's not good enough in terms of a specific promise you know we've cited the heinz case where individual says i mean one hundred percent or that is that there's a paddock case which they say will work with you that's not good enough for us to be specific promise to do a specific thing you know  promise then they say well we have all this course of conduct you know he they were in they were looking at they were drawing plants up they were doing projections they were testing aggregate at the rock well the fact of the matter is we've cited cases the interesting case for example the green co case that tells on case all these cases where there's a course of conduct and it and it's all subject to as something some further final agreement just like this getting a a final agreement it's a business risk you take and you can't force that on the on the defendant and that's what they're trying to do here there's no evidence of promissory estoppel nor is there evidence of damages beyond a couple hundred thousand dollars the only thing that happened before mr stump told mr sabatini that the that the project was not going go forward in february of ninety nine was that mr seventeen had purchased or put rather said put a downpayment on an asphalt plant that's less than four hundred thousand dollars when asked to trial what could you could have you gotten out of it he said yes probably for again off the top of his head in her nine hundred thousand dollars all the rest of these damages the supposed lost profits in the value of the business are specifically based on mr sabatini continuing with the project that rodgers did not want to go forward with so he took the risk of going forward he could have gone back to his mineral st plant which was still in operation and continue with the same operations that he had so the elements of damages certainly didn't accrue on february in february of ninety eight mr stump said in an e mail that what rogers is doing could put a crimp park out of business and and that's that that would let the jury conclude it wasn't just sort of a self inflicted injury well the question is what's the prom understand that's a separate argument there's a lot of activity that one perhaps could construe to be well again no it's not a it's why it's not a breach of contract claim before well again if you if you look at the same type of cases where there are lots of course of  follows the issue is did when you go forward which is subject to a final or further agreement can used can you claim that that going forward is enough and the cases are unanimous the answer is no so there certainly wasn't any evidence of a promise there wasn't any damages beyond three four hundred thousand dollars eight hundred nine thousand it most and they certainly certainly nothing accrued after that in terms of the billeted to pre judge of interest and as we indicated in our brief they're not  so real quick back on this this article three point i don't take a lot of time but i think i just remind the court about the white decision six circuit we rely on heavily the underlying point here and i think this court's recognize that there's really a two step process  is there article three standing which i say and i think lou hahn says were you injured by this defendant can a cork redress it that's really it and i think this court's decisions in white explained that w says itself this is not an article three case that's the one with the check where he transferred possession to the company this is not an article three matter it's just a real party proper party an interest it's a legal defense the defendants have to raise so the truth is an assignment of the claim if you really been injured by the defendant and a court has the ability to redress it you have article three standing the question is if there's an assignment or an alleged assignment it's the defendant's burden to prove that that's the case and if they're right there right now the cases they cite in reliance are you know the atlanta gas decision we talked about i heard mention see a construction and shriver foods as we point out in the third brief when you really look at opinions get a little sloppy but i think they're talking about prevention concerns about the idea of what happens in assigning cases which is you're raising the interest that is now owned by somebody else even if you were a regional engine the twenty eight j letters here which cites some recent cases and don't go into much depth on them because of the word women are i think really worth looking at because the courts are getting more precise in exactly the way the supreme court saying we cite three cases at the end of the twenty eight jail letter that actually go into detail about this article three rule seventeen distinction one of them called something like sujata the defendant's polis a sort of similar tactic and the judge says you can't change your real real party argument that you lost and now reinvented as oracle three there's a couple cases like that that sort of clears it up let me briefly respond to these points this promis estoppel point very briefly this is promissory estoppel want to one jury rejects the september one document the handwritten documents say you know it's not a contract it's not formal enough in september but what happens in the three and a half months after that when seventeen is talking to stump two to three times a week they have two major conditions and then had written agreement we've got to get the site we've got to get the site approved center street and we've got to get the real rate the way we need two and a half three and a half months rogers group emails from rogers group we got the site our site is approved we're ready to go it's great real rate we finally got a solid rate and mr seventeen and hard drives are at the point of no return they're ready to buy this one point five million dollars plant it's going to be the biggest in the state he calls up rogers group i need to know you're with me yeah they're with them we're talking about a jury trial where cram park won the jury trial in the jury can make those inferences that went seventeen with at the moment an overturned three months in all the conditions are met are you with me are you promising to with me to be with me the rogers group cases are exactly the opposite about the condition of management approval or is this the man that's fine i mean you know maybe that's one reason the jury thought it wasn't a contract that's fine but the question is and you know roger's kelso closing told the jury even if you reject a contract we've got to go to promise or stop what you better find a promise you have to find a promise and in december as this core pointed out in its first opinion the other promise was this december situation of are you promising to continue to be part of this because this is going to be a bet the company situation he's doing fine for twenty years and he says i'm going to put everything i can into your promise that you're going to be with me on the same map you produced see my time is up i think you and we request judge over the course markets are thank you very much case will be submitted thank you very much a