the st issue i'd like to address is the question of whether or not the district court committed reversible error when it held that the to give ha had not been wrongfully enjoying been to rule sixty five c in the police sickly three granted but rather what is the ultimate decision on the merits in the case and this is something that is done in hindsight in hindsight you look back to see whether or not at the time the tiara was granted whether at that point in time with the benefit of what we now know the ultimate decision to be big be enjoying pardon have the right good long to engage in the enjoined activity and in this case in two thousand and twelve new jersey beyond sports betting was legal at mom of course let's let's talk about christie wine and christie two christie one determined there was no unlawful commandeering to the issue and i know i was on that panel and then when i'm back christie to the injunction was entered in the bond was given in connection with christie to bush and the issue there was whether when the state and acted a repeal of legislation whether it authorized there was no constitutional issue presented in christie two we specifically said we want revisit that nice try unconstitutional unconstitutionality was not in connection with the order in connection with which the bompas given now does it does it and part of another situation let's say the case of commandeering had been decided in the nd circuit and the issue of authorization was decided here in our case it meant the nd circuit case went to the court and decided it was unconstitutional which then meant that you had been wrongfully enjoined because it was unconstitutional but it was a different court how don't we have to tie the the bond and the order and  wrongful restraint to the specific issue any order that was entered the answer is no because the judgment of the district court was reversed by the united states supreme court in addition the issue of pastors constitutionality was at issue from the minute this case was filed until the the supreme court decided because when we argued the p r o the issue in front of the district court we  one because going under christie one passed was unconstitutional because the only reason passed it was constitutional under christie one was because of the savings interpretation and the supreme court rejected the sort of thing to savings and impose get by on damages i don't think you could do with the district court did here which is essentially to win games from some type of surgical analysis of a single issue and say well that's the only issue i decided and think that you have to look at the statement in the comic case which is the th circuit case and i think you also have to look you are just briefly if you trace the evolution of rule sixty five soon it begins with a little supreme court how could there be any discretion under that to allow a court to pull out the commander coldly required by the rule of the text of the war it is clear it says it's mandatory and there's nothing in there that gives a court so this isn't an injunction question but it's i'm getting to that the notion of void have been shown what that means when i when the supreme court announces a new constitutional rule so a year ago the supreme court said state state rules requiring public sector employees to pay union dues is unconstitutional remember that was the yes that was the janice decision this on of the st amendment does that and that overturned in  seventy seven case abood does that mean that union employees stake state union employees who are paying their union dues for the last forty years now have a cause of action because that decision back in one thousand nine hundred and seventy seven was void have an issue that supreme court and when that happens what does that mean about that statute and if the issue is wrongful restraint and it was void then i guess the issue is whether whatever it did meant that you had been wrongfully i'm conducting sports betting was it unconstitutional federal statute which is as if it never existed which meant that there was never a bar beginning in two thousand and twelve that would have prevented mamma park from conducting sports betting so two weeks but then in connection with our bond motion we submitted an affidavit from mr grove who was an expert in his field and he estimated that the t r o damages were upwards of ten million dollars so th we are accepting the fact that on the wolf fullness of the injunction the damages only been added to the amount of the bond because i think the war is clear in that regard i would like to argue otherwise but i think that the more sense that that's what it should be to count the damages that have been done as a result of the room full injunction what for a moment about that because i think this is something that has gotten overlooked in this case for six years believe what we not only did it merely put them out of business but it cost people workers shops clerks which which factors is going to this is goes to the quantum factor outcome of the younger line suit is also a coin factor that becomes relevant and in this case the outcome of the underlying suit is clearly in favor of the th and in fact on the constitutional issue with supreme court voted seven to nothing reversed by the supreme court but upon the amount is clearly reasonable in relationship to the the undisputed certifications on damages that are before the court but damages going to be enjoying party or significant not only in terms of institutional business damage one in terms of people damage people bam which there were people that lived for six years under the threat of losing their livelihood and that's got to be taken into favor of mama pork in the p h a and the final point i want to say is they talk about their good pay they serving acted in good faith and this is where the declarations by the commissioners of the major sports leagues in this country  the reason it's so be it is because it was the spread of sports betting that's what they were complaining about they were complaining about the spread of sports betting and then so you could have to you have to stop the spread of it and issued in october of two thousand and fourteen in our view was not in any sense one fall within the meaning of will sixty five dollars c and even if it's an interesting question but even if that t r o could in any way be described wrongful is still there and you can phrase it i think either way i think it's a determent you would you agree it is determined that the ultimate merits determination had it can't be determined otherwise water can only be determined at that point so yes there's always determined in hindsight but that's a different question then you may only look at this particular moment in time you may not look at any other moment in time there's no case that says that the hindsight here would take you back to the entire period either well ok with hindsight let's take a look at what happened and in october of two thousand and fourteen the wall this circuit was the past but was constitutional the constitutionality of passbook christie to have nothing to do he said it had nothing to do all you can say that when it came to us on appeal it certainly was part of the whole ball of wax was it no and the only reason that christine two happened was because the legislature picked up on what was said in christie one as to how to avoid the commandeering issue and did it a very unusual case where it's one ball of wax if you will well it's a straw knowing unusual and i want to answer the one ball of wax but what i think happened in this case is the issues got separated tied that we're be splitting hairs to say oh oh ok well you weren't restrained because of that you were restrained because of this i mean if it's to me it seems to be supreme court said passed on constitutional and they also took up the issue of authorization i mean it's interesting to me that they didn't take search from christie won but then in christie too they took cert from christie to an address the constitution ality so do necessarily wasn't that issue embedded in christie too which was it was not gross imbedded in your honor it emerged and it emerged in various stages because it was absolutely not in front of judge ship he was nothing he could do you would this court had said passport is constitutional so he's not saying well i you know it's embedded in i mean he couldn't foresee how this would evolve and i think ultimately his decision was that he wasn't going to not as a matter of the wrongful or not but as a matter of his discretion he was not going to impose costs and damages on the lead for having correctly argued about the t r o and having not had a crystal ball that the supreme court confronted with judge then ask is dissent in christie one which absolutely presaged what ultimately happened it was before this or i don't know why they didn't take cert in two thousand and fourteen but they didn't and so when the t r o comes up before judge ship in october th three months after the supreme court has denied cert he think this issue of constitutionality is not before me the only question the only question i'm considering he said it at the time he said it and in this decision as well on not giving any recovery on the bond is whether or not the weeks  of success on the argument that the partial repeal or in two thousand and fourteen was actually authorization underpass but that's all he was deciding now he should have been you know and we should have been questioned and to know all of that eventually it was going to come up but it never came up until really the on donkey proceeding because your honor in the panel decision said pass this constitutional we are not going to deciding one way or the other and it does make sense that if it ought to be the issue specifically before that court that is what is restraining here i couldn't find case law that really change the rule until months later the listener has said this out of the timing issue and i absolutely concede you can't answer that i don't know what the destructo could have done but i'm going to do it to one term and what i'm saying that was are gong feel right and  is sometimes district judges get it wrong and they don't know they got it wrong until the case is is concluded here judgeship got nothing wrong normally the issue on the t r o or when their judgment is going to resemble the issue that enjoined or wrongfully issued because that court could have been wrong but when it goes up on appeal it's it's up held it has to be that it wrongfully restrict wrongfully prevented from doing what what they should have been allowed to do because the supreme court decided it was unconstitutional but the court whether the court on the merits was right or wrong is not the issue it's whether we're going up to the supreme court they say ok you should never have been restrained from doing this because it's unconstitutional isn't that a test that's well there's no case you are in which a district court got nothing wrong the bush you that ultimately decided the case was not before him there's no case that applies the term wrongful the party was wrongfully in joined by a judge who was prohibited from deciding the issue that they say he got wrong there's just there is no authority for that and that if you want this case is extraordinarily unusual but let's we don't have to do well actually on whether or not it's wrongful that is an interesting metaphysical question but once you court had unquestioned unquestioned authority to decide who go go through the factors and yes he criticized other cases that gave a broader equitable power to the to the district court but at the end of the day and i think it's the zenith case that sort say there's a more than the normal chance that the district judge might get something wrong that's the concern that the district judge is going very fast he might get something wrong and you wanted deter people from making frivolous application outlook haitian made by the leaders was not weak or or flimsy in any way and no matter how much time judgeship it had to consider this issue judgment i think couldn't possibly i said you know what i going to have to consider the constitutionality is somehow still in this case he was told it was not in this case so in all of those circumstances he concluded it wouldn't be it wouldn't be reasonable or fair to impose on a party that brought a well founded restrain had argued in his his dissent way back when was because that congress could not issue direct orders to get to the states now that neither we nor judgeship were present enough to know that all that was going to happen if he found it was not a good basis on which to impose costs and damages on a party with the intention of don't bring frivolous injunction applications are injunction application was not weak in any way we prevailed in this court a number of times and so the arguments we were making here i can't cannot be dismissed as the kind of arguments and the reasons why an injunction bond ought to be recovered against your i still have a little time but there are other points that mystery show talked about that were not decided  discovering on it that was an important issue before the magistrate judge in the briefing schedule before judge ship on this motion they put in affidavits about their damages and we made a motion to bifurcate this motion so that anything that required discovery anything that could not be decided either as a matter of law or discretion by by judge ship would not we would not even brief so we did waive we've objected to their damage claim in fact i think there's good reason in this record to have grave doubt about the damage claim because even after the supreme court in may of of two thousand and eighteen issued its decision finding passbook unconstitutional it took thirty days cases back to the wall full of a highly unusual separation of issues that leads to a district judge as you could i think read in judgeships decision saying i didn't do anything wrong here i mean the i couldn't consider the constitutionality of the only show i could consider i got elected because that was affirmed by this court in the panel decision the on bob decision the supreme court itself so the judge chip is probably saying i think anyone but if i did has been enjoying well as we're covering the injunction bond that's the that's the interpretation that mr riccio is putting on that and there are many many cases cited in our group that's wrong that's just wrong even if you've been wrong for me and join d the the court has to take a look at everything that happened and this highly unusual case where the where the issues got separated and judge ship did his level best the leagues brought an application that on the bottom and there are as again in our brief there are many many cases say that is wrong but you've got to look at the whole situation and this case as unusual as any i think any of us can imagine and trying to figure out whether they were wrongfully in joint and the only way you can conclude i think that they were wrongfully enjoined is if you choose as i said earlier if you treat the void of an issue of doctrine as some sort of orwellian concept that means the past never recovery on the bond and this court upheld that saying it was a matter of discretion and whether he abused his discretion the court found he did not now it didn't quite go into the elaborate discussion we've we've had here about all of these factors but i think the law of this circuit is not that well six thousand five hundred and sixty means that if you prevail on the merits on whatever ground you happen to prevail on you are going to recover mean two of those factors matter here one is the good faith of the leagues we had we had prevailed temporarily but we did prevail on the constitutional issue in this court in new jersey went ahead and adopted another statute that seemed to us pretty clearly yes an attempt to take advantage of things that had been said in the earlier case but really just a pretend repeal in order to authorize what they wanted was forced gambling in the casinos and the racetracks we felt we were very very strong ground in making that application and then judgeship agreed and said because of that you're on strong ground you have good reason for it and i couldn't even consider the constitutional you take those things all together and i am not i don't find it fair or reasonable to impose on a party who brought an application for a t r o in good faith had strong legal argument i granted that legal argument and i've that imposed a bond as i'm required to do by will sixty five c but i didn't do it because i thought anybody thought three and a half years later the supreme court is going to change and i think that should be the result here is what it says he said purdie wrongfully enjoying what it had a right all along to do what it was enjoined from doing right and when the supreme court struck down pas  county case why is it not true here because it doesn't serve any of the purposes of will sixty five seek to apply retroactively in that way on a retroactive application it's unconstitutional it's unconstitutional they had a right to do all along with they were restrained from doing because passed but it's unconstitutional it should never have been there they were wrongfully restraining and i am proud and i'm willing to accept that that's correct but then you go to the next question of whether or not there was good reason and that when you have a situation as i've described where judge ship was absolutely bound we had good reason to do what we would do that is not that is not serving the purpose of trying to prevent people from bringing frivolous applications and and again the will sixty five dollars of the cases are pretty clear it's the it's the fact that the district judge is going so fast there's no requirement of a bond in a permanent injunction so we have a tomorrow here for twenty eight days judge ship quickly replaced it with a permanent injunction and it was equally unconstitutional you know void i miss you know but there's no no bond there what why is there a bond on temporary injunction and not permanent injunction because of how fast the district judge is going because if he's going too fast he's likelier or she to make a mistake making a mistake is important in this analysis and judge ship did murphy apply retroactively i'm sorry to disapprove court's decision to apply retroactively there was no discussion by the court as to apply it retroactively i don't know what that would mean exactly what i asked i asked your don't i don't know what it would mean to apply murphy retroactive there's certainly there are and i'm sorry my time is up there are circumstances where you would of course apply a declaration of unconstitutionality analogy but it shows the problem with with too literally saying the past is the regs and that's why they were always entitled to it because the past has been raised in the an open cases an enormous void a marriage of an issue but if they were children of the they wrongfully prevented from doing something if something unconstitutional by necessity they were wrongfully prevented from doing so and wrongfully restrained it's not really not a retroactivity issue it's an issue of what fits within what's a wrongful restraint what something is unconstitutional clearly and you were restrained because everybody thought it was constitutional clearly donna with respect to the queen factors and us council why he thought that discretion should be exercised to deny recovery on the bond and i think it was well we acted in good faith that we had a good case and we kept winning you know in the district court in this court and kept going over and over again so therefore you know don't penalize us for having opinion than an injunction distinctions being stuck on misreading of precedents and one counsel says we don't know the supreme court was going to change its mind supreme court didn't change its mind it corrected the error is the presidents were there still says wrongfully restrained by virtue of the order that i'm going to enter on this t r o which by the way has to do with my determination as to whether what the legislature has done is authorizing sports gambling because how is that wrong isn't an implicit in rule sixty five that that bond is given in connection with an order a t r o n r says i'm ordering that it's not it is illegal authorizing has nothing to do with the constitutionality why wouldn't we limit the pond to if that  supreme court didn't find that they were wrongfully and joined by order regarding authorization indeed justice alito pattern this on the back and said you know what what they did was authorizing so the rd circuit was right in that no cases were filed in both cases they were treated as one case the issue of passports constitutionality was one ball of wax it was in bed it was significantly card together and it was inexplicably intertwined