party under section eighty eight the i'd like to use my opening time to try to answer as many of those questions as i can initially the meaning of necessary judicial in premature corresponding alteration in legal relations and where does this case fit within the outer limits of that construct it's appropriate to reason backwards to answer these questions because we know from buckhannon that we cannot have a catalyst theory of work we also know from buckhannon that a catalyst theory means quote there's been no judicial the sanction the therefore the non catalyst situation is when the state changes its position because of the district court the district court looks at the state and says your wrong and the state says oh we're wrong then we'll change that's not a catalyst situation in other words the district court can be credited as having made the defendant stop and that that causal connection is clear proximate and unassailable for example in buckhannon the court approved of judge final judgments and court ordered consent decrees it did not approve of just commencing a lawsuit without the district court ever actually doing anything however the buckhannon court also express lee and explicitly approved of the result in the eight circuits decision of the southwest bell what happened in that case is there was a finding of racial discrimination but all that happened was that the court which came to restriction so that it could impose an injunction if there was ever any facts sliding by the state however no actual injunction was ever issued that was sufficient we see from cases in this circuit and the ninth circuit which are two of the more pronounced in this area that the prevailing party status best when the district court does something that produces a lasting change in conduct that is the functional equivalent of a judge judgment on the m because there's nothing more that needs to be done i would like also to direct the court to two recent cases from two thousand and ten since the last time i was here arguing one is from the western district of missouri called dhobi crane from october of two thousand and ten there there an opposed to yarrow it turned into a judicially sanctioned it mission just like we had here and the court found that that was analogous to a court ordered consent decree and vested prevailing party in the case of sound the color of the district of hawaii may two thousand and ten there was an opposed t r o there was a stipulated continuance of that yarrow and the court found that the plaintiff got precisely the room the relief they sought as a result of this case does not revive the catalyst theory because it is refutable really that the attorney general stopped her conduct because of the district court the attorney general was given notice of the t r o hearing she appeared she opposed with premeditated arguments and she lost the t r o was entered and that actually gave ultimate relief it was effectively a permanent injunction with regard to the hilton show itself which was why live gold came the attorney general then returned she repeated and reinforce the same arguments and she argued that there was no jurisdiction the district court rejected the jurisdiction challenge and after having made findings at the t r o hearing about likelihood of success reaffirmed in five different places during the preliminary injunction hearing that the attorney general was wrong that there were quote equal protection first amendment due process problems with what she was doing and made clear that live gold was entitle to some legal resolution of those problems specifically at page three eighty five of the record judge deborah boy said quote well i fail to see it and there's no reason for that was when he was responding to the attorney general's arguments of why she was discriminating between unregistered as opposed to register trademarks and page three eighty seven judge debra voice said it seems to me that the basic legal problem which was in equal protection problem a first amendment problem a due process problem are resolved if live coals position is accepted a page three eighty eight judge debra voice said that's my understanding of what the law is and should be all right i just don't want to muddy it with the attorney general's argument that recording groups were required to give consent that was in response to the attorney general's argument about what he quote unquote proper trademark should be a page three eighty eight judge judgment the we started of course with the t r o which well you don't have either of those we have we do have turn to what the judge said on the bench or that's correct in the transcript and he repeated it in his order that is the subject of this of this appeal which is in fact also another signed order that is an order where the court dismissed the case in said didn't i decide this on the merits when i issued the t r o and that did give ultimate relief in his written opinion he then did take a step back and say wall like it was if you were to yarrow but there are cases i just have you decided on the merits he said he did not decided but what kind of deference phemie respectfully i think it's that it's that is the issue of law when we first came here the attorney general had argued that that constitutes a fact finding subject to a clearly erroneous standard respectfully the issue here he make findings for whatever reason the judge debra voiced decided that the finding likelihood of success on the merits of the t r o and the language that i just quoted where he say that's my understanding of what the law is and it's not what you're product the job of of of this court and trying to decide and answer the question of what is judicial in premature reviewing the analysis reviewing the transcript reviewing what the district court actually did if it is obvious if it was assured that the tiara was going to be converted into a political injunction from what was happening and that's enough here judge debra boyce was not in other words i never faced any of the same questions from judge dept of course it was entirely directed at the attorney that on her own this was there is the argument that you're talking about it this statement you mean she was coerced into making that decision she was effectively coerced by the district court into making that decision that's from the turnpike and for your office the judge had written it all over the walls of that court room you are about to lose your rock i am going to take this t r o which gave them the faulty relief that the whole show and i'm going to continue it because i fail to see what the merrick what you're saying he said you're truly wrong at one credibility and he effectively settled the case well on the settlement we couldn't i would argue that this is indeed analogous to a court ordered consent decree but judge debra boyce indeed you don't have the courage well we have the and at the end of the day the district the attorney general first argued that the case was supposedly moot because of the t r o and we had gotten all the relief we came in for and then argued again that it was moot because of the judicial binding the judge could have you see in the cases that the courts don't want to encourage you to go through the process of further litigation to get a particular kind of paper we don't want to elevate form over substance that way would you have offered order w and we agree on this actually judge debra voice did that for us he'd memorialized it on the record i did make a motion for forcible order that is certainly enforceable against the attorney general and she and she confirmed it when she came back a year and a half later and said yes i'm still bound by this i'm not doing anything different and i won't that's why this case is moot and not capable of repetition any longer if live call had a contract to play him that i was i was indeed bound by that judge's power judge debra voice did exactly what he should have been doing judge perry he came in a federal judge with a great intellect and an understanding of the constitution never looked at me and doubted what i was saying only cast his eye at the attorney general and repeatedly repeatedly said you're wrong and in the order that is the subject of this appeal confirmed that he in fact found that's his word i found equal protection due process first amendment problems could i find stopped for issue preclusion i don't know the answer if you need a specific judge you think that where deviates in this analysis is because you don't need a judgement per se you need the functional equivalent which is what we have it seems to me that in this minute these groups are clearly violating what we think the truth and we're going to say without a registered trademark you need to have a true officer is there enough on the record to bind that office there is your honor because her office was pound judge debra voice referred in his order to how attorney general milgram agreed that her office would be bound by what her deputy if there had been if the t r o if she had come in during the period of the t r o and continued to harass the hilton that would have been contempt if the t r o had been converted into a polygamy injunction because she didn't agree to be bound in open around and by the way the same deputies who work for attorney general milgram are here today for attorney general to how if the office not the person but the office turns around and starts reinterpreting the truth the music act the way they were we could see contempt they would be violating an order of a court that said you're bound they would be violating the order of the court that said i'm relying on you to dismiss this case because you are you are bound and mootness means not capable of repetition that's p having represented singer management at the start of this case which is no longer a party which was held to be in contempt i do believe that if the attorney general's office was to its nose or flout what happened in judge deborah voices court room and flout judge deborah voices reliance on that in in order in to to bind her so that i had to leave his court room that i tried to move for summary judgment i couldn't because the attorney general's office was still claiming an investigation of the contract the judge actually was there at the scene said that i have not given a judgement and he specifically said so i don't have to make any final decision a three eighty eight and i did nothing on the merits i mean he said that the what we do we need the functional equivalent of a judgment we don't need a piece of paper called the judgment p a p v v x judge himself is saying i don't think i gave you the functional of a judge or the judge in this case although it it shocked me after the fee hearing when he was looking at me and saying you won the case and looking at the attorney general's and saying why shouldn't you have to pay their fees it was surprising to me that judge debra voice issued the order he did and i can't explain it all i can say is that it is a legal question and there is enough in this record it is compelling in this record it is irrefutable in this record looks as what he was saying at the feet hearing is your good counsel your good because and perhaps some of the questions that i asked at oral argument are hearing were the impetus for the state changing its mind in other words they we together were the catalyst for the state changing its mind and fortunately in a five four decision the supreme court said that's not good enough i can't interpret it when we were at the fee hearing one of the leading arguments that the deputy attorney general made is that this is a time of recession we shouldn't be taxing the states dollars with having to pay i can't explain why judge temple voice did what he did what i can explain is that we don't need a judgment we need a functional equivalent we need something he's saying that knowing about p p d that's a different he's we'll get a ruling on the merits they're going to have that here they're actually the ruling on the merits was done at the t r o stage  was concerted the t r o was converted into the p r i unchanged the determination was done at that initial stage the two cases i cited to the court dhobi crane and sound the color t r o stage it's  such as sound the caller such as ls so even garcia from the second circuit we do have a ruling on the merits with the t r o because it did provide ultimate relief which are arguing as you have the functional equivalent of an out and after that there are not there therefore orders in this case there's the voice after hearing argument extended it to beyond the statutory period to the entirety of the hilton show and this yarrow qualifies because the attorney general then comes back and says well the case most cases moot he got his t r o he got all the relief he wanted in the face of my opposition to him requesting that he got beyond that we've also got that of course the statement of judge judge debra boyce binding her in court we've got judge debra boyce retaining his jurisdiction he actually misspoke in his order he said he had vacated it and that's one of the questions this panel pose that the tiara was not vacated or dissolved on the merits this is not like sol the whiner or john t this is a city situation where the t r o had done its job and had vacated on its own terms that it expired the question at the preliminary injunction hearing was whether to continue that as in p a p p into a policeman arion junction or not and what happened was truly shocking when after twenty minutes of arguing and clearly being told she's wrong when the writings on the wall she says i give up i'm going to do it differently i promise i'm bound so there's no need to convert it into a  saying you know he said this or he opined on this isn't that what district courts do they have a discussion oral argument musings there's statements there's a back and forth i don't hear you citing him saying you know ruling i have filed i have term or the like well i did quote earlier but i will also say judge greenaway after what happened i've certainly never seen anything like this in everyone i've spoken to people this is sort of a once in a life tell you do an about face i have never seen the state government official at the end of an oral argument where it's about to be ruled against her after the judge just says his last words before she does the there's no need to into it or there's no need to team we've read in this one this is not musings where during my part of the oral argument which is what happens in courts all the time we've seen it today for the last two hours this court you know hands it to counsel and we banter to go back and forth to arrive at the right conclusion what is the right result things here in this courtroom today amount of judicial rulings to a judgment absolutely not if that but if this court had let one counsel speak for five minutes uninterrupted and then said ok we have nothing no questions for you and then got the other counsel up there and said that's not the law you're surely wrong we fail to see it that is clear that there is a judicial set no that's not i what we can't have clearly is as in buckhannon there's a lawsuit filed and the district judge never gets in front of a microphone never says anything the legislature passes new law you can't ordain why and we shouldn't have to that that's what bu is concerned with how can it says that there must be judicial sanctioning there needs to be findings on the merits and on the merits on the merits correct and here there were those findings multiple times when the judge says you are bow is that suggest that we apply to determine whether there is a judgment on the merits when the district court took some time to write this out so i try to read it if i may when the first to quote can be credited as having made the defendant stop her conduct and that that causal connection is clear boxen it an unassailable necessary judicial preferment or exists when the binding exists so that the defendant does indeed stop the defendant goes further and says we are  the questions saying about judgment on the merits well that wasn't written in stone and by can i want to quote judge am bro and his dissent he said but hanlon characterize these two resolutions that a judgment on the merits or consent decree as quote examples of this nation's that create the necessary material alteration of the legal relationship of the parties now this is important thus there may be resolutions other than the two identified in my  that warrant prevailing party status and that is just for the full court and justice scalia in his separate concurrence twice explicitly made clear this court in buckhannon approves of the result in there was no judgement in parliament there was a finding of race discrimination and there was a retaining of jurisdiction so that a tension injunction could be issued if there was backsliding but that never existed that's even less than what we have here in  good morning good afternoon made me toward my mantra is still quit insisting attorney general representing the attorney general of new jersey consistent with the approach that the supreme court has taken in other nine hundred eighty decisions buchanan established an objective test for determining whether or not a party should be accorded prevailing party status for purposes of nineteen to be cannon court underscored that the test for prevailing order nor as was the case canon and so vs weiner primarily focused on whether some success with achieved through the litigation i don't like to know that contrary to counsel's description of pahrump as supporting his position that chief justice rehnquist in footnote nine in par and indicated that although there was catalyst of discussion in the parm decision it the court granted relief only after finding that the defendant had acted unlawfully quote we hold as a matter of law the plaintiff's evidence of stablish a violation of title sets  the court ruled consistent with our holding in fact our param stands for the proposition that in a forcible judgment permits an award of attorney's fees provides for an expansion of the court's inquiry as to prevailing party status resulting in protracted litigation and appeals but even more so it requires an assessment of the subjective motivation and import of the district court's comments during oral argument that are not reflected or memorialized in a court order or judgment and finally they argument fails to accord substantial deference to the district court's understanding of its own waters and the effect of effective denial of others here the only written order entered favor of life gold bears no indication of being merit based and as the court has noted judge  found and no finding as to a forty two u s c section one thousand nine hundred three violation moreover the circumstances in which the t r o hearing were conducted and a review of the transcript of that brief hearing supports the view that the order was entered primarily from a balancing of the harms to plaintiffs the attorney general's occasion and the hilton hotel and thus constituted a pragmatic attempt by judge debra voice on a friday afternoon to maintain the status quo leaving as he noted at the end of the transcript consideration of the merits of the application to the return the t r o transcript is also notable in so far as it does not provide any real discussion and any real challenge to the position that was being vance advanced by the attorney general there the attorney general was focusing on the fact that her own investigation had only just com and it was only two days before the hearing that she was provided with any documentation from live gold and singer management the focus excuse me i'm sorry the focus of the court therefore was on the alleged harm that live gold and singer management were arguing it was they were making the assumption and the court was making assumption that they had  utilize their names and the argument that was being with bands was that if you do not enter the t r o the hilton will not have a safe harbor from being at risk of penalties under the truth of music at and therefore that was the primary thrust of the argument not any challenge to the attorney general's reading of the statute and if you review the e mails and if you review the prefer that was filed in advance of the t r o hearing plaintiffs were making assumptions as to what the apparent reading of the attorney general's the attorney general's reading of the statute was but there is no pointing to anything prior to that hearing as you any specific statements that were made by the attorney general you have stated that we are only in taint the status quo the t r o the status quo with the state of new jersey was saying that these concerts must be billed as a tribute your honor the e r o went in and said you will not interfere in any way the concert went forward as a concert not as a tribute and with introduced every day as a concert not a tribute so the t r o accomplished a good part of the really the point of asking for and i i find no basis for your statement that the t r o made the the status quo your honor i believe a full reading of the of the transcript comments was about the relative harms to the parties to be heard and to be attorney general's investigation and to the plaintiffs and the point that was being pressed primarily by the plaintiffs was that they had needed a safe harbo and that was the reason and the judge and judge deborah voice was focusing on the fact like is a clear that the hilton is going to exceed and mr sharon was saying to judge deborah boies i believe based on my conversations with the hope they will  your honor the i think is made clear in the previous that were filed in advance of the policeman airing injunction the position that was being advanced by and also that's made clear in the complaint this was not a complaint just about the august two thousand and seven concert at the hilton the focus was on future concerts the the contention was made that it lennox city was a prime venue for these concerts there was argument advanced at the preliminary injunction hearing it was also a declaration that was drafted by mr melich who was the head of lives live golden singer management indicating that they had future contracts they had future concerts was not what could he have that he did in order to satisfy you with respect to the left of one hundred pretty it was there anything he could have done he couldn't have run up to the boys and said but anyway give me i need a piece of paper i need  for the whole thing was out of your honor i think the reason that judge debra voice may have thought the whole thing was over was the what the theme that he kept repeating on in the policeman or injunction transcript and that is that that day he was going to be filing his decision in the treadwell that a geisha and finding that the mr marsh that live gold that mr melike and others who were who were sued for contempt were in contempt of the original order that was issued against marcia but that had nothing to do with at least two of the parties before the court on the september seventh but this court as well is judge debra boys in affirming contempt order against live gold and mr malik noted that the drifters who were the focus of that litigation were the primary draw in but in the concerts that were held by the three few there was who has the right to the trademark the issue with more the court on september the seventh was the trip to taste and given to the truth and music act by the state of new jersey which in essence was that  register craig mark is valid under the statute an unregistered trademark is not and that is the concession that miss rock finally made in the hearing on september the seventh yes a proved common law trademark will be accepted in the same light as a registered common law trademark that the that the presumption of validity only goes to realty here we are beyond validity this change you have made and that is you you're talking about the credible case that really has nothing to do with credible yes it does your honor i respectfully have to say i think that a more reasonable debra voice did he was being told by mr sharon and in the declarations that there were future concerts and the argument was being advanced the same way it was advance of the g r o that they help needed a safe going forward your honor i the attorney general's position is that until the brief was filed in advance of the preliminary injunction hearing there was not a dispute any dispute in record as to the position that was being taken there was a sentence in that brief that was a den of fide that was incorrect but what is what is you are bound in this what it what was he talking about i think there was current quickly that if you were a few of the transcript there  position that was being advanced but even if what the point that was being made was there was clarification as to the reading of that particular statute and what judge deborah pryce was saying was his whole entire coll asked for a judgment summary disposition in his favor and there's further talk about are there more sure shows going on what is going to happen in judge deborah boys at the very end system mr sharon which if any serious problems that arise which the plaintiffs think require a merger really they can ask for to be rescheduled on short notice and your honor i believe that that the reasonable import of that was that he knew what the decision was going to be in the treadwell case he had found that the drifters were the primary draw for those concerts and i believe the judge debra voice had questions whether in fact those concerts were going to go forward he had about adjusters he had questions as to whether a certain craig mark with the out but mr sharon is concerned at and preliminary injunction hearing was ongoing interpretation of the law and the change in the relief i understand that your honor i think the point i want to make is there is no finding by judge dead before us that whatever that colloquy encompassed no finding of a nine hundred eighty three violation he could as much  raised and he was saying that the i have to get those are the allegations of the problem those were the allegations but what he did not make a specific finding that the attorney general had violated the lanham act had violated person they did not achieve a material change in the relationship but the attorney general or rather this be if we call it if if we accept what you have contended that this is a concession all it provided was the legal framework in which the ultimate question that was presented in the litigation the argument that was advanced at the preliminary injunction hearing and in the motion to dismiss was whether or not they had the common law authorization this only provided the legal framework and as the u s supreme court decided in hewitt because you receive a favorable ruling of law that is not attached to any merits one is the state's view of the minimum order the court should have to comply with buchanan to comply your honor there needed to be a written judgment either when mr sharon asked for a partial summary judgment it would have to be summary judgment based on one nine hundred eighty three not a state law determination or are there would have to be a merit based determination that in the if this court agrees with you in this case what effect would our ruling have on civil rights actions in your state your honor i think v there was a merit determination by the district court as judge ambrym noted it was an unusual situation where there was a clear determination of a nine hundred eighty three violation that the city of pittsburgh violated the whether or not there could be something you know short of the the two examples that the supreme court gave but as judge alito gen then judge alito noted in his opinion the what was required for there to be the functional equivalent was mandatory language in a written order signed by a grifter court and in forcible we don't have those even if you were to find that there could be the equivalent in in the context of an hear you but i also heard these very very explicit expert judges on our court who served as district judges saying that that's not the all you well you can see that what the state months here places a larger burden on the plaintiff and the civil rights action given that usually the  cases are decided without these cases are decided without a formal order your honor that's that's not my experience has been that the cases where we had the experience we had the experience of several if i recall several judges on this podium today who had been district judges that said that's the way it's done but your honor in p a p v what was clear there and what the court emphasized was that the district court made an expressed finding in express nine hundred eighty nine hundred eighty three finding and beyond that there's not only there should not only be consideration of the impact on the plaintiffs but also the impact on the defendant's america if you have a t r r or if you don't have a t r r o order that provides a nine hundred eighty three finding you don't have the state does not have the ability to seek review  finding against the state of new jersey and i think that is a significant in the same way that the court considered the interests not only of the plaintiffs but of the government and the interests of congress that there should be only certain circumscribes circumstances where a prevailing party status shall be alloted it is an exception to the american role and in this particular case there was no reason why the highly competent couns to give a currys as an exception to the american and civil rights actions brought under nineteen eighty three congress made that to say we can't fight back decision you can't fight that decision and we agree or on what we believe that that decision has to be viewed through the prism of buchanan and the very clear standards the supreme court adopted there as well isn't so versus weiner and it does not allow for the kind of free fall test that is being proposed here today the states and the governmental entities are entitled to specific nine hundred eighty three findings that they can review that they can decide whether or not they're going to appeal in p a p v the city of pittsburgh decided not to appeal and they acquiesced would you concede that absent a canon you lose now your honor i don't i don't prior that your position here the position argument was that there was a mistake made in the prefer but even if it were one hundred eighty degree turnaround it is a state law issue it could as much a finding by judge to a concession as to what state law is the catalyst theory never was intended to provide relief to a federal claim tiff for a win on state law alone but if  it had been a state law issue simply an injunction is or not grounds in the war of an injunction for a petition for attorneys requires i find ing of a violation of forty two u s c nine hundred eighty three we're talking about your confusion about what exactly the t r oh no no no your honor i say what i'm saying is i think even under the catalyst theory we don't have sufficient clarity in judge deborah voices findings either in that year even if they are deemed findings in the t r o transcript or in the preliminary injunction whether or not he was saying i now even if you accept the argument that he was pushing the attorney general to the well well as oppression to the war on an issue of state law there is no clarity that this in fact was a nine hundred eighty three finding is that o anima problem there was a finding your honor the brief that was filed by the by mr sharon made clear that with the attorney general's position he conceded that there was no longer any constitutional issue that doesn't mean that judge debra voice was making a finding and i think that just demonstrates that this it was a car queen that was untethered to any specific suggest that he thought the issue of whether there your position one hundred three your honor we did not concede we did not get whatever the attorney general did it was not a concession that nine hundred eighty three had been violated all that was involved w an interpretation of state law and the attorney general is intitled as would any other governmental entity to a finding by a district court and that is the reason for the merits based determination there has to be a finding states that narrows the lawyers yes i believe that's what he meant and i think he fully i don't think it was a surprise therefore when he considered the nine hundred eighty eight feet up occasion he looked at the t r o transcript and saw even though there sentence in the transcript or two sentences where he said if there's a probability of success on the merits but certainly it wasn't a merit based determination the attorney general never filed a brief and in response to the t r has received the papers the morning of the t r o hearing he mentions in the transcript i glanced at the papers that can't be determined to be a merit based determination he did not at the complaint and said based on the allegations i find there is a probability of success but that doesn't satisfy what this court put forth in p a p v and what the u s supreme court has required under buchanan it is not a declaration that the state of new jersey has violated the constitution is three sixty two to three sixty nine of the record or my reply brief to judge devil voice every single one of those pages identifies the quote unquote errant or inadvertent sentence that was the crux of her position for for a month she had every favor but here we keep trying to guess what he did we don't have to guess he says it repeatedly he said it on march ninth he said it in his written order i found equal protection due process first amendment problems and i found that those problems were i he looked at the attorney general and said you're wrong voices been on the bench since one thousand seven you know if you wanted to say i find you think that he would hesitate to say i find the fall but he did on march ninth he said that the one hundred eighty degree change eliminated the preemption problem that he had found eliminated the due process problem that he had found and eliminated the equal protection problem that he had found so that the statute as construed it would that the change in prison position was what result of the problems he found there were problems and he found therefore that we were entitled to legal relief the relief we got was the one eighty in the judicial binding and i need to i just th is when you say he found there were problems is that is that materially different from saying there were there was i hold that there is preemption i hold that there's a conflict is there something different between saying you know there's real issues here and saying as a matter of law you lose on this point of law of scritches magic words like holding when the other side doesn't do a one eighty and doesn't stop the case midstream here the judge didn't have to make a holding i asked him to i asked him to do a summary summary disposition but my client every one of life goals claims had a mix of both constitutional and contract elements every claim pretty clarity judgment was premised on the fact that we claimed our assignments were valid and judge debra voice actually began the polygamy injunction hearing telling me that he thought the attorney general was on stronger grounds on the merits which surprised me but then what he made clear was that he meant the assignments because he found problems with the singer management point to the transcript had he said you know there could be some real merit here i see issues that are troublesome to me in the in the state's position i think they're really well advised to be rethinking this and they came back and said what they said and you said hey that's great and then you said we want to judgment and he said no if you don't do that you don't get any judgement here all we've  got it resolved to resolve the issues i would that would you be still saying on the prevailing party your honour's hypothetical has to put aside the t r o but if we put aside the t r o and we just come in with a blank slate and that's what we get i would not be making the same argument when the district judge said problems you know he said they exist problems in this case means violations he actually used the term violate he said there was a conflict with the lanham act there were violations with the lanham act they were based on equal