is really whether a district court has the authority or jurisdiction to issue coercive civil contempt sanctions to of course compliance with an order that has expired as you well know this is our second appeal position then we think it was correct position that that appeal challenge the just it's court's issuance of the original intent order and we challenge that order on the grounds that but you could have made that very same argument different question that contemplative presumably you treated as having impose sanctions the original yes yes of course ok this one impose sanctions yes all this happens they haven't collected on the defined would not continue to escalate post expiration my question though is when he initially imposed sanctions just as with respect to this or do we tend to can it's true that they have not sought to collect on it but you seem to did then what i don't understand is well if the order may have expired why can't he now collect on the sanction that he imposed from the prior time when it would have been for the purpose of course in compliance with the order because the case law is uniform that where the purpose of the civil contempt sanctions is to coerce compliance when the underlying order for which compliance is sought expires the you're in jail you had that punishment right but that burden was imposed on you yes going forward they can't keep you in jail once they were expires to force compliance if they had made you pay and collected on it each month during th bagwell he suggests that once it's been paid that was legitimate coersion of compliance with the order so all that's different here is he didn't actually collect on the sanction that he imposed it why can't he now what is the logic of saying that the sanction that was imposed to coerce compliance but they didn't collect on the actual money now means they can't go back and collect on it you didn't violate it there was a sanction imposed you seem to think now you can collect on it he collected at the time it would have been perfectly legitimate i don't know if that's true i think that it would have looked at the time it would been perfectly legitimate until the order expired was once the order of spiers then you all the money back i think complied with that part of that intent of the judge and that's why i would take issue with what you just said like but regardless of that when the preliminary injunction expired there's been absolutely no the unfair judge time user i don't know if the answer has to go but i have to say i agree with you similarly i would soon if they collected on the sanction amount and raising and it's an interesting point all i can say is that the cases have dealt with very similar situations in which the underlying injunction has expired or been vacated they've held that the all of the outstanding  champs sixteen point five million dollars in course of sanctions were imposed and then when that injunction to disclose the information was not continued in a permanent injunction  letter but i thought that the sixteen point five million dollars and f t c had not been paid in fact i think there was a front page in your new york law journal on that issue in which the lawyer representing said that there's no way who is the money to be paid to i think that's fairly clear it's a united states government so i think the record that tells us who gets the sanction or nothing other than the case law that says that the purpose of purpose of the injunction which was to preserve germany as a enforcement jurisdiction because as really uncontested declarations are german law that we submitted all of these proceedings indicate that german court would never recognize those funds other than what he did well actually i think that suggests the argument for the imposition of sanctions anyway because again another uniform principle of contempt law is that where there's no there possibility of sanctions being effective to coerce compliance that apply sanctions should not be that's on the cars the funds you could have made the funds available but i'm doing the merger well and if we had  well i don't think that's fair either really because i think that you know well i think as i said before looking at this situation right now i think it's fair very clear and i don't think it's even contested the purpose of the injunction was to prevent the assets from being moved out of germany to why germany was not a viable enforcement jurisdiction in the first one being that under german law this particular judgment even if it was on the merits would have been enfor is it your position now that is valid or simply if there are no assets in germany it can't be reached in germany and austria well not  course once the preliminary injunction is violated it really serves very little purpose anymore because the status quo and injunction the injunction literally set the fenice shall not carry out receipt and the content order is in the contempt order judge puns are found the defendants and civil contempt which is not even was never even disputed that those elements  directed them to restore the status quo ante and that was what was important to my client i mean at that point the preliminary injunction had no purpose or value unless the status quo ante was subsequently restored and the order saying do not move the company to austria really has no value to enjoy the dynamics once the companies actually already been moved to australia in violation of that injunction so what's important to us very very important to us and i believe to the district court and to this court as well in the opinion that judge sauls author is that there is a directive to restore the status quo ante and just to get to the question that you were asking about judge baron you're absolutely correct the sanctions the sanctions were in place from the moment the judge pons or issued his contempt for a back in april of two thousand and thirteen and they were accruing and it's not like he said i'm not trying to you know collect or impose or have the sacked sanctions actually take effect he actually said you know it's far as the rest warrant he asked the marshals to take every step possible to execute that arrest warrant take new bring them into custody the only reason why the sanctions didn't go into effect is that neuberger chose to become a fugitive he lives i think in your opinion judge style you point out that he has residences on four continent did chose not to come to the united states or to stay out of those jurisdictions that might you know collect him into custody and he's continued to do that he's been a fugitive for almost three years but the finds were order to start right away and i guess the reason why that's relevant to the waiver argument is that at the time we were here we were actually here almost exactly one year ago today on the earlier appeal at that point the sanctions been in place for nine ten months already and this argument was never raised it wasn't raised on the contempt of you know or the judgment appeal which was actually taken after so there is it's not really this issue was issue i take the point you just made that even if the contempt order effectively has to expire with the expiration of the cleary injunction that expiration of primary injunction order affectively prohibits the contempt order from having ongoing effect because it can't coerce compliance with an expired order what would be the basis for saying that the arrest warrant can still be outstanding well seventy million dollars because that was a sanction already imposed but the arrest warrant they were already suffering the burden of having to arrest warrant out there question is should there still be an arrest warrant going forward what would it be coercing compliance with well i guess if if the but it was it had that effect every time it was imposed so what would be a reason to say now goes away i don't understand that i know the cases seem to suggest that in other circuits but i'm at a loss as to what the logic is well i guess all i can say your honor i enter stand the question you're raising but i guess to me the point is that there is an order still out there that that these sanctions are intending to come to course implies that order is that it was an affirmative order in other words the original injunction and barrett it was an affirmative order i believe the wire disclosure had defenders to do something affirmative in this case it's appropriate it was a prohibitive injunction that's the point i was turning me earlier in response to judge lynch's question it was a prohibitive injunction said do not do x do not complete the merge and that's why once they do complete the merger the preliminary injunction even before it expired the preliminary injunction has no value doesn't accomplish anything and it's very clear and this was actually argued at great length and brief length in the earlier contempt appeal that the court has the power the district court has the power when its prohibit there isn't going to be any criminal contempt by against me because judge posner doesn't have the power to impose criminal contempt citations it has to be a prosecution initiated by the united states attorney and my understanding from expired i mean that's not me representing the position of the u s government that's my understanding but if if these sanctions are overturned at this point then neuberger basically gets away with everything because he has violated the the process do to a person who's going to be subject to a penalty if it scores it to comply with an order you get less process if the purpose is to punish you for not having a poly lawful matter rather than  compliance you get more process and what i guess the one way to understand what the appellate argument has at this point in the case because you didn't seek a permanent injunction the best way to understand what would be going on here is you would be punishing for having refused to comply with a prior order in which case the right procedures are different than the ones use well i guess your honor what i would say is and there's there's definitely caseload that's in my brief that talks about this i mean i guess all i would say is that that the contempt order the reason again i answered this question before but the reason why we consider permanent injunction is i mean i can answer that personally as the attorney i mean this there seemed no purpose whatsoever to seek a permanent injunction that would say you can't move the company to austria because they've already moved the company separate work and that would have been that would have had a purpose i guess it didn't occur to me that that was necessary i mean it's an then that water is over and there has been affirmed by this court i mean the order the contempt order of judge robs or says restore the status quo ante and what form it takes it's an order and the case was very clear that that contempt civil contempt sanctions can survive the term a nation of the proceedings and so that order survives simply because  sergeant i've been wondering what this case is really about is this because you took the deal are you expecting your client to come back in this country and therefore you're trying to remove all of the obstacles that stand in his way because otherwise it's a little hard to see why you right that's a good question that i discussed with my client and i'll tell you what the answer is and that is because he believes that he's been a victim of injustice and he thinks that he still has  hope that the rule of law will prevail and that he will be judged fairly decent my understanding of the record i have a hard time seeing where the of victim of  we're seeing well you're on i don't i don't want to spend the time necessary to give you a full answer here but this is very very short in terms of the underlying contract the provision there was a knowledge qualified representation that the my client's products does not infringe other paddick patents the summary judgment decision granting judgment in the northern district of new york completely read out that now knowledge qualifier it was in appealed and because the preliminary injunction of the contempt order was issued a violated city area that entered into that underlined contract had to file for chapter eleven bankruptcy and a trustee was appointed the trustee then settled with eighty i primarily for the purpose of dismissing the appeal and so that underlying judgment which we believe was would have surely been overturned on or on appeal because the summary judgment decision was based on absolute warranty rather than a knowledge qualified warranty never really was was was result  one one of the things that certainly is the focus of my client's belief that he really has been unfairly treated by our court system but but me i know we have a that's what you're supposed to comply with you're supposed to comply with the order to purge york that's what yours was in civil and sanctions but the reason we call it civil i thought yes was because the contempt used to induce compliance with the underlying whether it's true yes but if the underlying order is a prohibitive injunction and that's already been violated so then that's what so you're on your theory then even today when that preliminary injunction has expired you could have escalating fines going on i don't know until when in order to induce compliance even after default judgment of my client no that's not that's not what i just want to get the logic of your position forget whether they still have to pay the seventy million because that's water over the bridge i'm asking on your theory of it the cap your theory seems to point to the idea that i don't know to the end of time you could have escalating things that they have to do somehow risk this merger even after default a dozen has been paid no not up for the the judgment had been paid we wouldn't be here at all you're ok so until that time the yeah yeah yeahs me find until the default judgment well i would say i mean this court held that the five couldn't escalate so i'm not going to argue that they could still escalate forever but the sanctions can remain in place and the case law is so difficult in your own thank you the case law that cited in the brief from many other circuits is very clear that the sanctions can continue and the supreme court actually said in bagwell civil can't sanctions continue indefinitely until the consul nor purchase content indefinitely is the supreme court's work and so the only injunction dynamics to collect at least some of that seventy five million dollars of collective judgment and so in answer to your question judge karen i would say that this is an extremely unusual situation as judge sauls that were every order of the of every court has been status quo ante and they actually do it and neuberger doesn't become a fugitive but he gets taken into custody and that gives them an incentive to do it and then he would have undone the merger long before the judgment enter and then we would have been able to collect a judgment and then this issue would have even been here the only reason why we're here at all is because they fund their nose at judge posner and this court for long enough that that the judgment is enter and the preliminary i have not seen such a case the cases seemed opposite well i guess i was not the verities not a pretty tory injunction you since getting might be but i haven't seen a case in which they've said if prohibitory injunction which results in so whether or not you cited such a case before you now have the opportunity to say i thought your case but now try to get it in the next seven days and then we'll give you the chance to i'll be very brief first just with respect to my brother's point that there's a difference between a for him a tory injunction an affirmative i don't think you'll be able to find any cases that make that distinction and if you think about it really doesn't make any sense the reality is the reason why we're here today is that neither a t a i nor the district court thought seriously enough about reserving germany as a enforcement junction to carry out the  terms of a permanent injunction i reiterate nor did you raise as you would know we didn't and the other point i'd like to make now is to address that i think i got sidetracked in my original opening presentation not only do we take vision that we didn't have the opportunity to do and it really would have been appropriate to raise to you but we also say that it's a jurisdictional issue that can't be weigh in regardless of whether we should have raised it earlier or not because it's first in active all right i won't i won't go there but i will say that i will include if i can and in my rule twenty eight j a brief point about that and a citation to a very interesting law review article by justice frankfurter against the history of contempt and puts a lot of these issues in context thank you thank you very much