foggy morning and trust that you were all boycotting the super bowl so there are no morning after problems here in this courtroom just a couple of words we are familiar with the briefs and record excerpts you but we appreciate record precise citations to the record since we probably haven't read the whole record before entering the courtroom today and also we have the traffic lights as some so when the yellow light comes on you have two minutes and we're in the red light comes on we ask you to conclude your argument as soon as you can unless you're answering a question from the court case in the morning is eighteen five zero eight nine five texas retailers versus u s department of agriculture here first from mr fan morning they please the court tennis and i'll be after the united states i reserve five minutes out of my twenty four rebuttal since two thousand and eleven there has been a long running litigation elsewhere over whether snap or that is food stamp records should be disclosed from two thousand and five to two thousand and ten once that litigation in ariz leader proceeded through they'd circuit resulted in a decision by the circuit plaintiff brought this action to enjoin the government from following  order that was issued in that litigation we think that interfering with ongoing litigation or fear with court orders in doing litigation elsewhere and certainly ongoing litigation that is impending for many many years would you take   let's say the executive branch of government does something immediately five lawsuits are filed all around the country and sometimes sometimes they come out with varying results so if you had agriculture during the argus leader proceedings published a public request for information in the federal register it contacted retailers all the retailers within the stamp network by e mail and by telephone notifying every single one of them that data might be disclosed in the course of the artist leader proceedings and that those proceedings might result in disclosure and i think this only highlights why this sort of injunction is put to take it away and appropriate in this case fourteen when u s d a provided notice nonetheless they waited until august of two thousand and eighteen one day before the eight circuits remanded issued after they made its decision without participating in those eight circuit proceedings to bring this case to collaterally attack what was going on in a different court house are going to what is your point there but your point i think that points out just the equitable balance of what is going on i think plaintiff's harm reduces to what is essentially that another court might decide these issues that another port has decided these issues if that was really there harm they really should have phrased those concerns with the other court documents in washington it doesn't have to be confined to your locality foyer parser in nebraska you can say what is going on in texas i think you know something about that is perhaps stranger odd and i want to know more about that what what would what would you advise us to do in light of this or grant by the supreme court i assume they're going to hear the case this term right that's also what we anticipate and you'll probably lose we're not actually sure about that i mean we we haven't i mean out of full disclosure to this court we're considering participating as am a case in the supreme court proceedings that we've held meetings with the parties now in cases about whether to participate as i am it is we don't have a bottom line that we're willing to disclose at this point but at the same time there are pending supreme court proceedings right now obviously and i think that there are three reasons when the dispute is narrowed down to the potential impact on texas retailers of this pilot program that you saw it will not go into it won't even go into effect for two years to me that's the classic definition of a non right dispute and therefore nama judical so let me answer that question then first before kind of talking a little bit more about the interaction between this case and the court proceedings but i think the fact that texas this program will not go into effect in texas means that there is no need for a preliminary injunction now to get a preliminary injunction you need to show both irreparable harm which we don't think really is the case here but also you need to show that that suppose that they may well have been is sort of a prudent exercise of the courts to distil power and if the court is inclined to think that there's no reason to exercise power now that only makes the preliminary injunction can tire cases not right because they're trying to prophylactic lee challenges at the impact on them of regulation that hadn't even gone into effect of enough program and has the u s d a has made a decision to comply with a court order but i take the point being that that decision has not gone into effect because that decision might be you know the disclosure of that data might be years in the disclose the information and so in that sense they're seeking prospective preliminary injunction to stop that from happening that disclosure could have happened earlier in the given your track given the fact that the supreme court has three answers to that the first again is the g t sylvania case as i think those lay out exactly what you do with the later filed case you can get rid of the later file case even before the  supreme court proceedings that are just leader because we think it really does because it involves the same exact two thousand and five two thousand and snap records then that the question isn't whether to wait once there is that's very substantial overlap this court and any other court would want to take steps to avoid that sort of  what would our judgment be that would accomplish the end that you are advocating your judgment could simply be to vacate element actually i also don't think it would be error to vacate and with instructions to dismiss we don't think it would be while it's the same harm as if another district court now after this circuit rolled head and said well you know we don't like what the fifth circuit is doing in this case and so we're going to say something different or going to say well now it's two years later data that we're talking about today comprise records detailed records kept by the u s d a of how much snap participants spend in each store that they frequent for years the u s d a has published a great deal of information copious data about what is spent on snap each year in each state and each county and sometimes in each zip code but for the entire history of the step program for forty years u s d a has kept individual stores sales figures confidential why doesn't why doesn't the public have a right to know your honor i think the public's interest in the way the money is spent in the snow program is vindicated by the amount of information that the well i don't know i mean if it turns out that kroger is allowing people in the food stamp program to purchase beer why don't i have a right to know as a member of the public you're under the u s d a old ready in forces those policy guidelines and  the public's right to have that information doesn't override the individual retailers ability to protect that data and the freedom of information act of course doesn't invite courts to do this kind of balancing on a case by case basis as the courts of the sit instructed in the paris the legislature the congress limbs let me tell you i'm concerned with two or three things here one of them is and rightness plainly rightness as to your two thousand eleven forward data another one is i don't understand how the district court had jurisdiction to do what it did because it had it can only get from point a to point b under the trade secrets act which it never even cited in its opinion and this is a smart judge and i'm very surprised that you're saying we should read between the lines and the third one is i don't understand the competitive harm at launch the online sales program until twenty twenty one and they say well that means that the injury is not eminent but that's not what imminence in this context means the question is not whether the pain from the legal violation of our rights imminent the question is whether the event that will cause that pain is imminent whether our legal injury is concrete and imminent and here is we obtained the t r o when u s d a was apparently within hours or days of releasing this data and the release of the data in which the retailers have a confidentiality interest itself constitutes a legal injury once that data is out there is no way to get it back it may not hurt our pocketbook on day one once that data repeat that you or i was talking about two thousand and eleven forward it's for the two thousand and eleven forward data surprisingly to us once we filed this case we found out that the u s d a had made a decision to release the two thousand and eleven forward data without telling the retailers that they were going to release data in response to twenty three undisclosed requests requested by the u s d a as own regulations they ought to have informed the retailers of but didn't and they were planning on releasing that information but for the fact that this suit was filed if we hadn't done that we think we would have missed our chance and that's simply the dye would have been cast our right to confidentiality would have been violated and that right is what's in imminent danger and i think that's why the case is ripe since u s d a intended to release the data that was not at issue in the south dakota court and intended to really to requestors who had not been parties in the south dakota court that was going to do it without warning in violation of their own regulations if the retailers had waited for some sign that the u s d a was going to violate their rights they would have missed their chance and that's why we have a hardship from tell me what it is the concern is that the use of this information by new online competitors poses a serious competitive threat to our members the u s d a office this information tell me and i like judge jones and she didn't compared to the competitive spirit which knowing that you know in seven seven zero two four where i live we probably have five or six grocery stores and everybody knows who they are and it's not difficult for the online people because they're very smart to go into the stores and do an assessment as to whether food stamp customers are plat patient izing those stores you do that two ways number one you look at the customers and number two you look at what stocked on the shelves so i don't know i'm i just don't think the portions of the affidavits that were cited in your brief we're very  speculative to me as how this would assist the great online you know dragon in the sky competitively i think what the the deck lawrence had been talking about here is the increasing role of data analytics in the grocery business and i know it seems counter intuitive to think about this but the information itself ends up being the competitive arena this is the grocery business where there is intense competition and very slim margins because we're also in the same oreos we're also in the same dr pepper also in the same reason so what is it that allows you to do things like compete with the store next door on the  a few pennies difference in price it's the ability to accurately analyze what products are to live and then you can h e b can compete with wal mart better if it knows what wal mart how many families food stamp traffic wal mart has right you know you're out of it exactly right and one of the things that we identified in our declarations is the fact that if we were talking about just the world of h e b it's kroger's information kroger it's wal mart's information and there's reciprocity in the amount of data that you're getting that would be a less compelling circumstance of what we're talking about here now is the arrival of the online provider so then you go yeah on your theory is that that they dispense everything from  drones from some centralized warehouse in nevada and therefore you can't tell who they're selling to in your market but that's not accurate you disco to the department of agriculture and you ask them to break it down by zip code as well  right here at this point the data that's being requested is who is the seller and how much are they selling i understand then you can go and make similar requests can you not you can make similar requests for pilot programs can you not i don't know that we would direct and i'm not sure that anybody has brought about it what we what we have been and what we have been asked to allow the u s d a to share rather what u s d a has been asked to share is where are the purchases being made and if we're talking about the amazons of the world in the fresh direct of the world those purchases are being made of decentralize facility i think the u s d a with treat very differently to request tell us where the customers are no one knows where our customers are either but they know what our individual stores are selling and i think that there be a real concern if the notion of the public interest in spending now getting to a point where we could seek as a foil matter what individuals are purchasing using their cell that's honor i think one of the things that we're trying to focus on here is the fact that this is a sales information is at least as it's treated in the industry confidential and of course that's what for you is focused on is is this information that corrupt poses some possibility of competitive harm this is information that's so valuable that people in the grocery industry can sell it for money and actually pay people to help them analyze it and that's one of the things that our declan's talked about is the fact that they are able to sell individual store data to survey companies like nielsen who will who will promise to keep that information confidential only released studies of that are aggregated to a larger level than the individual store level the market has voted with its feet to tell you that this information has a valid well go on now down but you're getting back to arguing the argus cases best i can tell and to be very blunt about it i found your brief in regard to comedy  almost offensive in regard to how much and how with little regard you had for the decision of coordinate federal court your honor we obviously think it's important to have respect between the various courts you know i don't think your brief indicated much respect at all he said well they just didn't they just didn't have the facts before them those any attend well they just didn't think about the future and well they didn't think about the online competitive threat at all our concern is that the judge in the south dakota court got it wrong i think the judge in the south dakota court decided the case that was in front of her in the u s d a is failure to present all those facts was a serious concern but we have to accept that decision as it is now the question is what do we do with a new competitive they'll find a new judge that's what you do your honor i think we're trying to present what would be a change in circumstances a change in fact that you're not you were just arguing to me everything that you were just arguing to me had very little to do with data analytics and all that it had to do with the current competitive situation in did not and now you're trying to transform this into metamorphose it into a speculative about online retailing the data analytics situation is uniquely tied to the online provider problem  is if we were just talking about wal mart's ability to deliver online products would be a different case but here we're talking about the arrival of amazon fresh direct and other online providers who use this data analysis program ways that the existing retail market is still catching up to and as we pointed out with our declarations a lot of these people are paying substantial money for people to help them adopt these kinds of data analyst programs amazones already there and never once to the trade secrets act and then again why and why i can he happened jurisdiction if the disk if the disclosure was required by law and why doesn't that provision of the trade secrets act fully apply to what happened in the eighth circuit your honor the district court's order does not cite the trade secrets act the court explicitly conducts its analysis under exemption for both the u s d a and we agree that any document that is exempt under exemption for well is protected by the tabs but the district but if this were a diversity case and nobody mentioned the amount in controversy we do have to say that the district court lack jurisdiction in this case your honor and explain to me the trade secrets act and this required by law sure and so on there for your first question it was mentioned the trade secrets act an exemption for linkage was mentioned in our need to call it out specifically now to your honor's question about whether the authorized by a wall and which in the trade secrets act might in compass a court order but this was not something that was raised in the district court oh well i'm sorry but we're interpreting the law i do not see that as a matter of waiver but there hasn't been a briefing on the issue what i would say well that's because you didn't raise trade secrets act explicitly enough but i mean it seems obvious to me because you would you agree that the trade secrets act is the jurisdictional vehicle here there is no standing to raise or reverse for we have thing in and of itself and therefore we have to look at the trade secrets act and whether the disclosure with authorized by law and i found here distinction that although that has been held to include discovery orders that somehow it doesn't clued a final judgment by the district court in the eighth circuit you're out of the point i'd make about this is that the trade secrets act what it says that disclosure is prohibited except as authorized by law that authorized by law language doesn't include it it is a legislative action not a court order the chrysler with the of the d o j of such deals with this it analyzes whether a regulation that's requiring disclosure could be treated as a law that could provide the necessary authorization by want to overcome the trade secrets act and in the chrysler case the us supreme court concludes that a promulgated substantive agency regulation amounts to a delegation of legislative authority that has the force and effect of law and that falls within the trade secrets act language authorized by law court specifically says that that doesn't apply to every action but approved by an agency and the justice department hasn't cited a single case in which the trade secrets act has been held to be overridden by an injunction that we don't even have an injunction here a federal judge said it's been authorized by it's applied to discovery orders that's right your honor and those courts conclude that rule twenty six provides the necessary authorization by  order of court the federal rule of civil procedure which is in that rule that's probably hated by the judicial branch and approved by congress and there is no sense there is no prior case in which it's been said that the trade secrets act allows any judicial authorization that's that happens to save power case respect this doctrine of comedy saying that it's so important that the district court must avoid any kind of interference with another court but respectfully the case doesn't deal with the question presented here the same power case is a relatively simple first to file a case where you've got one party that's facing two separate lawsuits dealing with the same facts and the party moved to have the second suit transferred to the court that was here in the first suit save power doesn't apply here for several reasons because first of all the a did not ask for transfer below they didn't ask for dismissal below so the central holding in that case doesn't come up here but even at the policy level the case says nothing about whether the interest in comedy is so important that it outweighs a co ability to issue an injunction and preserve the status quo so the point the u s d a wants to make doesn't even come up in the save power case i would carry around a good i would effect refer the court to the court's decision in man you mention mr right man manufacturing versus whore tax which is a case in which the court ends up saying that a first to file court should be respected but the fifth circuit specifically said that they agreed with the district court's decision to injunction in the first instance in allow discovery into parallel cases to proceed so that that court or rather the first filed court would be able to assess whether there was enough of an overlap so that it would be different competitive market is that your theory it's not just the geographic market it's also the fundamental change that the u s d a has created in the economic circumstances of the market well limit what do you how do you  that's that doesn't really make any sense because right now the only thing that's holding isn't plays is the supreme court's certitude should if that petition were to be denied than u s d a would apparently be willing to is just release this information without any further warning or discussion and at this point we think it would make more sense for you know since we don't know what the supreme court is going to do for the thesauri the question am i guess having percy's how are you being harmed now by the injunction  they won now your honor we are happy with the way things are at the moment and if the fifth circuit were i think as your as your honor suggested to opposing counsel if the fifth circuit were to hold this matter in advance until the end of the supreme court proceeding granted cert on an issue of law and you you're not i mean come on i mean if based on justice thomas dissent several years ago there seems to be more than a fair probability that that that the court will hold that this substantial competitive harm thing is not a valid interpretation of the law law right i think that's a real possibility in which case no doubt they will  and if that were to occur then i think under this circus president it would be a question that the district court had to decide or these cases now overlapping at a point that i no longer have a separate case here a district court should decide that not us your honor i think that the question of the factual overlap is a question that is basically a fact question because in this case the issue is have the economic circumstances changed to the point that we have a new issue to decide every year you can make up a fein i want to make three very quick points one of there was a question whether there's any president about court orders being authorizations by law under the trade secrets act the answer that is there is a line by the supreme court to seventy five of the trade secrets act which is what is the body of records and so we're really arguing about that first element and that's something again that the district court if it had done a proper trade secrets act analysis would have gone through an element by element analysis through the trade secrets act the second point i want to make is that we grieve that all the sort of arguments here about harm to texas retailers the online market those are things that and so i think that really honed in on the harm if there is any assertion of harm it is that the supreme court might ultimately agree that these documents need to be disclosed that these store bill two thousand five two thousand and ten documents need we don't think that's a really cognizable sort of harm to say that the supreme court might entirely dispose of an issue in front of it that is a natural consequence of having the supreme court decided not to play to us and the third point  disclose that we do think that there are significant issues with that cause of action with that claim with the two thousand and eleven on our data including the fact that there is no maybe you talk about this in terms of rightness but we think there's no final agency action which is another sort of jurisdictional bar that doesn't get you to relief and there is no final agency action because if you look at seven c f our one point one t walks you through exactly what the u s d a would be doing to disclose the data and it would be doing the same things that it did in this case i didn't argus leader rather with two thousand by two thousand question if if i proper scheme of reasoning in order to approach the question but we certainly think it's certainly think it's a legal flaw under chrysler to not even mention the trade secrets act which chrysler said you couldn't do to the extent that this court raised complaint in the complaint is found at page six of the record and thinks that it doesn't actually plausibly state anything under the trade secrets act that it only plausibly states essentially it disagrees with another court's forty decision and all it says is that exemption for should be the analysis then we agree with you that the complaint doesn't state a right to action and because chrysler says you don't have any right