respectfully submit the three expo does have standing to raise its claims under the federal constitution the first and fourteenth amendments in article one section ten arising out of the city's refusal to allow three expo to hold its adult themed event at the convention center of dallas and contrary to the district court's conclusion the fact that under its preferred business model three expo produces promotes and manages the event but ordinarily forms an affiliated injury entity to sign a contract with the event center in no way defeats three expos standing i think the sequence of events is important to understand why standing shouldn't really be contested here three expo held its event in august of two thousand and fifteen it was a three day event and it went off with great success at least as far as three expo was concerned and at the time the city was the convention center thought it was successful as well so they sought to reschedule a reprisal of for that event and in fact it was also a contract similar to the one in two thousand and fifteen that had been prepared and that contract was signed on behalf of the plaintiff by a gentleman by the name of j handy who is one of the members of three expo and he signed it on behalf of an affiliated entity that had been created although as the record shows there was a mistake about the name but the point was that the convention center had no problem allowing mr handy to use the affiliated entity as the signatory on the contract and it went forward and so when twenty sixteen came around before the new contract was finalized the matter became controversial as a matter of public interest and it became political and city council did get involved and there was a very spirited meeting on february tenth two thousand and sixteen at which a resolution was introduced to and adopted to prohibit the event of the video recording of the council meeting which is at the record record on appeal at thirty sixty seven leaves no doubt that the purpose of the resolution was to ban the event at the convention center the language of the resolution of force specifically refers to the three day adult entertainment expo that three expos wanted to hold again at the dallas convention center and both ronald king who is the executive director of the convention center who had signed the twenty fifteen contract and assistant director john johnson both of them testified that the resolution prevented them from booking the event it was called exotica it prevented them from booking the exotica event at the convention center and the relevant portions of their depositions on that point are contained to tabs eight in nine of the record excerpts that we filed and shortly so the resolution happened the people involved in the contract at the convention center said that meant they couldn't book the event didn't matter who was going to sign the contract they couldn't book the event and that's what they said and that's their testimony ok so nothing on the face of the resolution prohibits exotica dallas from signing the contract right well actually i'm sorry not the the resolution says to not enter into contract with reaction but it was in forced by the city officials responsible for the enforcement to refuse to book the event even in the name of the affiliate you know what evidence in the record the point to for that what can you can you tell me where the record that is that that that the resolution presented prevented exotica dallas from pursuing a contract  well if you couple things if you if you listen to the recording of the city council meeting there's no question that the purpose of the resolution was to prevent the event not to prevent the event only of the signatory on the contract was three x but there's no doubt about that and it was in force to that way by ronald king and john johnson whose testimony said once the resolution was adopted they could no longer book exotica we have a do you have a record side or something maybe you could tell us on rebuttal or some where it says that that they couldn't book the contract with exotica dollars yes john johnson testified that is a result of the resolution he could no longer book exotica and had the resolution not been adopted he would have gone forward with the contract and the contract which is in the record which was tendered would have been in the name of the affiliate so their testimony is clear that once the resolution was adopted both ronald king and john johnson who were in charge of the contracts both testified that it prevented booking the event exotica and nothing in the resolution actually prevents the booking of the exhaust if you just read the resolution it doesn't say that it was right but it was of course that way do you agree that it doesn't say that it's not it doesn't say that the plane that agree that it doesn't say that it for the injury they lost money by not being able to stage the yes secondly they got the injuries clearly traceable to the conduct of this resolution irrespective of who it was a plot against and thirdly the court can redress that entry if they prove their case yes so article three stand in has no relevance to who is actually on that contract nine as far as our three stand is concerned in this case because you have proved that you have standing well that's a really hot lead and then laid all these other issues can come forward just what kind of injury you've alleged you've alleged demonstrate exactly what occurred very friendly question that i do think that it's relevant for traceability and so i will return to my question about traceability how do you prove the trace ability requirement for standing when exotica dallas tech l l c did not pursue injuring into a client tract after the resolution was passed and wasn't exotica dallas's failure to do so an intervening  any injury which would cause the second prong of standing the traceability to have difficulty you know because they did apply now it's true it was the wrong name that was exotica texas when it should have been exotica dallas but remember that was all cleared up at the polluter junction stage and what actually happened was they did apply under their scenario because j handy wanted or we prize of the the event in the name of the affiliate they prepared a contract which is in the record and you can look at it the contract at the convention center was going to sign ron king was going to sign was for exotica texas l l c which it should have been exotic dallas l z but that's not the point and so the resolution gets adopted ronald king testifies once that happened he realized that that was going to prevent the booking of exotica john johnson testified that yes he was there at the council meeting he heard everything and once the resolution was passed it banned exotica and he could no longer sign a letter into the contract and he couldn't book the event and but for the resolution he would have gone forward with the event but it's not like a dallas never actually tried to book the event yes it did except unless you're suggesting that because the the the incorrect name was used but yes they they booked the event in twenty fifteen under the name but they didn't try to book the event after the resolution was passed and thus can tell me where in the record that as they tried to book it before the resolution after the resolution is passed did they try to did exotica dallas is there any evidence in the record twenty sixteen a vent that was proposed was going to be the exact same thing the affiliate would actually sign the contract but three expos would produce and manage the event and when they passed the resolution the city through johnson ind is that there was not a formal booking of the event in the name of radhika texas or any subsidiary of expo three for twenty sixteen twenty six think there was a just went their way what what happened is we filed we tried to get a preliminary injunction in the city you can read their fifty page brief ok man who is the city who has an injunction in behalf on behalf of three expo events  city vigorously defended against that injunction and never want it is a mere fact if you look at page fourteen of their brief they say that the resolution disallowed exotica they don't say that the resolution only prevented exotica if three expos signed the contract they didn't raise that issue until a year later and you can imagine what would have happened had they come into court at that preliminary injunction after their political resolution was passed and if they had come into court and said oh no this doesn't bar exotica all you got to do is put it in the name of for expo for example are you saying that the fact that everybody understood that exotica and and three expo one in the same alter egos of each other and dealing with one was dealing with this was just in germany excepted fact yes but it was never  put in writing to any extent of documentary evidence well actually it was because one of the defenses that they raised at their preliminary injunction proceeding was because the wrong name was on the contract exotic texas instead of exotica dallas they said we can't find a foreign corporation under exotic the texas so we put in evidence and explain well actually it actually was supposed to be exotica dallas and we showed that it was a for corporation and it was an affiliate of three expo and they never argued that based on their business model the resolution didn't prohibit the event in fact that everybody the evidence all shows  generally in fact they tried to suggest that because the company was informed that's that was even some kind of a defense but mr handy then filed an affidavit explaining and their business model was known throughout so there was never any any question of all kinds of other reasons having to do with intellectual property and the wife and one final thing before my time expires the evidence is also clear that the affidavit of patrick perino who was the lawyer and the other owner of three expo says we'll enter into the contract if you don't want us siding with our affiliate if we prevail in this case we're perfectly willing to sign the contract on behalf of three expo we would never be in it to conclude otherwise you've got employee employing me i don't well i don't it was probably all three expo employees who manage the of everything i can't answer that exactly your honor without but they were basically th accord my name is james hansen and i represent the city of dallas the district court granted dismissal on the city's factual challenge to three expos standing to assert its free speech equal protection if the district court result any disputed facts then this court reviews those determinations for clear error the question of standing involves both constitutional limitations on federal court jurisdiction and prudential limitations on it exercise today i would like to talk first about why the court was correct because three expose lacks constitutional standing and then i would like to tell you yes your honor first  reason that three expo like constitutional standing is because three expo does not intend to enter into a contract with the city manager and that was the prohibition of the resolution this lack of intent implicates all three elements of standing injury if the if the exhibit were cancelled it's clear that three expo had an injury it is it is clear that he would have been injured even though not according to the contract they would have been in they would have they would have suffered we don't know what would have happened after this resolution your honor because exotica dallas never asked to have a contract for the twenty sixteen expo and so he take the position that exotica dallas shouldn't even try to ask say that it was a futile and that there was no need for digs on it could ellis even try this is what they between represented here today what in the record contradicts that or tell us why that's not in the record witnesses to there were employees in the city they said it was futile correct did they say that they wouldn't do a contract with exotic could that dallas or imply that what they said don't even bother the resolution bans the whole thing your honor i'm not i'm i'm sorry i'm not certain what they are witnesses at the injunction hearing right yes your honor ok i believe they said something to that effect if they said it don't even try then why didn't he win the point well because when why are we talking about the fact that off haha exotica dallas never tried if they were discouraged from trying by the city's own employees haven't i we wasting everybody's time are we well i don't know that they were discouraged by the employees directly there may have been statements made i guess in depositions but i don't think there's any evidence that they were ever turned down because there's no evidence that they ever asked have the case and you get them for not asking if they were discouraged by the city's own people from trying if that's true how can you win that point honor i'm not sure about the timing of the depositions i believe those that was months after the fact but i could be as right about the facts don't you lose this point  honor i believe that it goes beyond just whether they would lose money it's also  for the purpose of article three and why does it make any difference well your honor i don't believe there's any support in the record for the alter ego status of exotica dallas in fact i believe that the record indicates that three expos consistently taken the position that ticketing and other matters at the side in the three expo had separate functions of being a promoter and general manager so they were not alter egos if you want to record i mean i read this somewhere well i honor i i apologize if i've missed stated the record but i believe that it's consistently stated by three expo that these were separate companies that they were not alter egos of each other  there was a dispute in the evidence between j handy s deposition testimony under thirty six as the corporate rap where he testified that three expose never has and never will intend to enter into a contract but on an exotic expo and patrick korinos declaration which was filed in response to the city's motion to dismiss in which he testified that three expo is ready able and willing to serve as the contracting party with the convention center so a conflict in this evidence the district court found that three expo failed to establish by a preponderance of the evidence that it actually intended to enter into a contract with the city to lease the convention center and there is no basis in the record to support a definite and firm conviction that the district court committed a mistake in making this finding which is the standard for clear error the district court's finding that three exposed did not and does not intend to enter into a contract was not clearly erroneous three expo lacks scanning to assert its first amendment speech and assembly claims as well as its as applied challenge to the city's sexually oriented business ordinance because it did not suffer any concrete and particular and imus making some assumptions and that's one that they have an injury to that it was traceable to this resolution and three that if they prevail in court that  constitutional violation can be remedied with money i'm assuming that they didn't have the intent to in the contract what they intended was to have the reference from but the resolution only prohibited entering into a contract with three expo it did not create a bit it during a contract with exotica dallas so that's the problem here you don't have a connection between they proscribe issue i believe not your honor and mr murray can correct me if i'm wrong but i do not believe that that they have ever asserted that they were alter egos of each other in fact i think they have consistently contended that they were  roger so three expo maintains it would have been futile for exotica dallas to request to use the convention center for an adult entertainment expo and ordinarily a plaintiff has to submit to the challenge policy in order to be able to challenge it in court but the plaintiff can be excused from the requirement upon a substantial showing that doing so would have been futile but three expos didn't make that showing to find that any request for the city to enter into a contract with exotica dallas would be futile would require the district court to speculate the district court found slip opinion at fourteen no eight that three x both fail determined that that three exploit failed to make a substantial showing that it would have been futile the court to judicial notice of the fact that well it was an eight to seven decision by the city council and that one of the council members had already lost in a reelection effort since that time your authors i believe the court could take judicial notice that two more council members lost their elections so three of these eight are no longer on the council the district court considered these matters as well as the evidence before it took judicial notice of those facts about the change and the potential change of the council composition and the court found that three expo had failed to make a substantial showing official resolution records or does not mean withdrawn i believe it is still in the record your honor i don't believe it's been withdrawn to actually enter trying to enter into a contract that is correct your honor there's no there's never been an attempt by dallas exotica it to enter into a contract there was a contract in the name of  claims that exotica dallas ratified that contract for twenty fifteen and yet can twenty sixteen the new proposed draft contract was still in the name of exotica texas hello c and i believe there is no evidence in the record that exotica dallas ever asked to enter into a contract and so for the alternative grounds for affirming we have lack of potential standing and you know the elements of that are that the the litigant has to have suffered its own injury has to be closely associated with the third party and there has to be a hindrance against the third party asserting its own claims in this case the third party would be exotic  dallas three expose lax provincial standing for two reasons first it's suffered no injury from the resolution because it doesn't intend to enter into a contract with the city and second three exposed did not plead or show that exotica dallas would be hindered in asserting its own interest in entering into a contract if access had been denied to exotica dallas purported first amendment and equal protection claims would belong to exotica dallas not to three expo but exotica dallas never requested access to the convention center and three expo cannot demonstrate that exotic at dallas was itself insured and three expo implicitly conceded that exotica dallas was not hindered from protecting its own interests when it filed an untimely motion for leave to amend its complaint to add exotica dallas as a plaintive similarly regarding its as applied challenge to the sexually oriented business ordinance three exploded did not own exotica dallas in two thousand and fifteen nor will it own any future exotica dallas events instead three expos attempting to assert its as applied claim on behalf of the purported owner of the event exotica dallas this is insufficient to establish credentials standing because three expo has not suffered an injury in fact because there is nothing hindering exotica dallas from filing a lawsuit should ever suffer an injury in fact for all these reasons three expo also lacks credentials standing in conclusion the district court's grant of the city's motion to dismiss was correct because three expo did not have constitutional standing or potential when you go back to the preliminary injunction proceedings and you look at page fourteen of the city's brief in opposition to the preliminary injunction they characterized it on february tenth if your clock expos signed an affidavit saying we will sign the contract we don't need to sign we don't need to have the affiliate sign the contract when they file their motion to dismiss a year after the the case had been pending stage when they were questioning which who is this exotica texas mr handy filed an affidavit explaining that that the affiliate haven't even been formed yet because they were dealing once three expo was given the go ahead to to have a contract that they would find a sign the affiliate it is the standard business practice for three acts for them to be the underlying management company for the various convections conducted throughout the country while a separate entity exile in this case exotica dallas is created to own that particular event and they're both taxes limited liability companies expo promotes it manages it and conducts the event and is and is willing to enter into the contract in its own name it's just a it's just a business preference it's not it's not a matter of substance as far as the city is concerned council you keep saying over and over again that three acts both good ready and willing to enter into its own name i know that there is evidence in the recordset object however there is also opposite everich residence in the record the three expos rule determination after hearing seeing this affidavit and hearing looking at the thirty six deposition and says i think this one is right and that was wrong that's what the district court gets to do on the stand and they get to make back in so we have to find that was clearly erroneous but if there is if there are some here and some there how can we find it clearly erroneous because the contrary finding makes no common sense you have to decide right in order to accept that that if we win the case after spending all this time and effort and resources and we get an injunction and we get damages or an injunction in the city says all well we're not going to sign we're not going to go forward with your affiliate will only go forward if you sign the contract you have to conclude that three x would say oh no we're going to give up our victory and we wouldn't sign a contract that makes no sense at all it is clearly erroneous to conclude that three expos  was the promoter and is the promoter and stands to gain and basically runs the event would say no we won't sign the contract when we win the case if that's if if we if we're going to be required to sign  contract in order to obtain relief that just makes no sense and john johnson just just to finish it let's get back to this of a point b is the record clear that the excerpt page five sixteen this is the testimony of mr johnson so as of february tenth twenty sixteen you were no longer authorized to enter into a contract to book the exotica for those dates in may twenty sixth correct answer correct question now had the resolution not been adopted you were prepared to go forward with the contract correct and he said sure i all times with three expo and was the one who shepherded them through the twenty fifteen event arc you to sign him half the city where he had his boss run king which who also said that the resolution put an abrupt halt to the  authorize john johnson to continue and yes king would have signed the would have signed the contract on behalf of the city once if the resolution hadn't been adopted but he gave full authority to john johnson to work out those details