my name is ryan ray in along with brant philips i represent the appellant excalibur international ltd l l c and i would respectfully request to reserve three minutes of my time for rebuttal the district court erred in determining that the younger abstention doctrine applies to this case and it should therefore be reversed in spite communications vs jacobs the united states supreme court made clear that younger can only apply when depending state proceedings are criminal or quasar criminal in nature the state administrative proceeding here which excuse or initiated to challenge executive action that would disqualify it from conducting business in the state of tennessee based on its unwillingness to satisfy a default judgment rendered years ago against an unrelated third party is not ways i criminal the state did not initiate the proceed ings with anything analogous to a criminal charge and there was no formal investigation that's like a criminal investigation so because the state perceiving were not akin to a criminal  what do you understand this state's position to be as to what is now g to a criminal action your honor i believe they are contending and i believe the district court accepted that the proceedings that excalibur initiated and that again your honor is the only currently pending proceeding is the proceed ngs that were initiated by caliber and which only could have been initiated by x caliber to challenge this executive decision that those are what is quasar criminal and respect for your honor that's that is what we would contend that there is no such thing it's not closely related to a criminal prosecution certainly not in important respects and therefore to to apply younger was there for air so we have to ask i think the want full the long philoctetes what's a dish that is that is one of the things your honor that the that the u s supreme court and sprint said we look at to determine is this a certain civil enforcement actions right they identified three things there's only one of them that's at issue they're certainly not a criminal prosecution we're not trying to shut the judiciary down so no it is a certain civil enforcement action and the supreme court sided huffman there your honor and huffman they said it was the path marking decision that was and action in which the the state prosecuting authority was trying to shut down a movie theater for displaying obscene films right in there was a there was a civil there was a criminal statute that said displaying obscenity was a crime and there was another that that could also have been in voked under the public nuisance laws which was done there and so so the court said that is that is akin to a criminal prosecution it was in eight of them closely related to the criminal statutes and so when we were asking that the supreme court said there are several things we look at in it whether it is being initiated to sanction the plaintiff or a wrongful act that is one of the factors that the supreme court general to make payments into the escrow fund that is created for the purpose of health and safety of the citizens of o c and your honor my client has made all of its escrow payments what's at issue is this judgment that was rendered against the brazilian company long ago and when we look at the wrongful lacked the i think we have to focus on the examples that the united states supreme court ga again they had the huffman with the obscenity laws there was more first the sims was a violation of child abuse in the state proceedings the department of human services trying to remove a child because the child ha abused by its parents they cited the trainer versus hernandez case was a welfare fraud case all of these these examples that the u s supreme court cited while they may not have been criminal prosecutions they were closely related to a criminal prosecution and indeed in the in the trainer case that the supreme court cited that they they noted that the state authorities had the option of enforcing these these proceedings under the criminal laws and that that simply is not the case here the state contingent its brief the wrongful act was excalibur voluntary decision to acquire and manufacture a cigarette brand family that's noncompliance with tennessee law and for which the state of tennessee has unsatisfied judgments where's words that first of all where is that prohibited at all that th not actually acquired those entities they purchased assets not from the company that had the unsatisfied judgment and that's an important part of our underlying constitutional challenges they they purchased some but not all assets from another entity that actually was allowed to operate for a number of years without having this kind of demand being made but when we look at the wrongful act it is there is no criminal statute in the state of tennessee that comes close to applying to this kind of situation well that you use the term not closely related to a criminal prosecution i think the actually the language that's in the cases as a can to a criminal prosecution and when you take somebody you know when you get a judgment against someone for this amount of money it certainly looks like but there must be something in the criminal law that would apply to a situation like this and we would contin judge that simply because a judgment is large does not mean by itself that it that it is a quayside criminal proceeding challenging that it that the underlying conduct in the wrongful act issue what isn't something that could have been prosecuted under statements to the press are do you not see the issue before us is a can to that type of wrong i would say your honor that in those cases in sprint from the supreme court talked about those that they talk about those cases when they're from an investigation being involved in the supreme court i think justice brennan in particular recognize that these bar disciplinary proceedings very much look like a criminal prosecution discrimination and in the attorney statements to the press i would say your honor that the supreme court recognized that those proceedings have are related to it they look a lot more like a criminal prosecution than what we have here because you had a state administrative agency doing this investigation like a criminal investigation we're interviewing people we're talking to people we're building this factual record and then we're specifically charging you with a violation of the rules of professional conduct or this other provision of of state law and that's just not what happened here your honor that the that there wasn't an underlying investigation there was a fact a statute were the department of revenue under the bacco enforcement laws could have commenced an investigation they didn't use that they used another statutory provision that allowed them to request information they requested information so that's that they claim the initiation they claimed that i initiated it with a letter and the investigation that's their position was that is a big big because that's not a proceeding your honor that is now not that they informed us that the commissioner of revenue had made the decision to delist this it that's not a proceeding a person where was that proceeding pending before whom was that person pending it that was an announcement of executive action that was not a an adversarial proceeding there was no adversarial proceeding until excalibur invoked the a p a only excalibur could have been both the a p a that was the proceeding that  could have been prosecuted under criminal statutes and so it is not the kind of perceiving to which the younger doctor and can apply do you think the decision by the bigger as it relates to younger we still there is a threshold issue of quasar criminal before we get to those factors under under middlesex if we look at whether we have a full and fair opportunity which we say we do not the tennessee court of appeals decision merely said that chance record erred saying it didn't have jurisdiction we still station to take your the discovery that you wanted in order to provide evidence for your constitutional client correct but we still are faced your honor under the actual facts as they develop with administrative law judge saying those legal issues are simply not play here so we can't get into discovery about how other state officers you judicial or quayside you dish will that have actually considered the merits have said no you don't get into this so in those facts we submit we do not have a full and fair opportunity to litigate these issues  may please the court my name is steve butler i'm here representing the defendants in their official capacities for the state of tennessee the district court correctly held that young groups tension applause in this case according to the supreme state proceeding is more akin to a criminal prosecution then our most civil cases the district court properly concluded that this is such a case let me ask you  directory and the reason for that was their refusal to pay the judgment for a third party which the state claimed o so that's just a technical point but they were the department is attempting to remove excalibur from the directory because of a statute in the statute says that the current manufacture of a non compliant brain fa which the berkeley branch families extremely non compliant in tennessee the current manufacture cannot be on the directory and so the department sent a letter to the to excalibur attempting to use berkeley cigarettes in tennessee not just on their own but but the but the statute doesn't limit to that the statute says the manufacturer cannot be in the directory if it is manufacturing  family in tennessee or you going there doing that yes yes they are the they are the manufacturer of the berkeley sort of a myth that they're the manufacture of the birth of cigarette they bought the right to manufacture berkeley cigarettes from someone else right yes and but they are not selling any berkeley cigarettes correct well nothing to see that  the table fun well in fact this is a point that i have to address in fact the state did remove tent this from the directory in two thousand and thirteen the department of revenue removed tend to from the directory allowed to remain on the directory and excalibur is not well it's as i said the state department ultimately did apply the statute against tent as there was a period of time  until other misconduct occurred and then they were removed and i don't i've not heard from you about your pursuit of this amount and yet now we're down the road further and it seems like it's a different foresman procedure against excalibur can you explain why well i suppose it was oversight with  chances for a period of time but we did ultimately apply the statute and that is the key point you know there's a keep saying that we never applied it we did the department of revenue did remove chances from the directory in part deposited into a qualified escrow fund and then you also have civil penalties and then you have there is a small amount of attorney's fees and then you have a post judgment interest on the civil penalties in the charges fees and that continues to one of my problems with your case is i can't figure out what is that that the state is doing is a kin to a criminal proceeding here i mean you're trying to that's not a drive to collect the debt now your honor what we're trying to do is remove excalibur from the directory based on the statute and they have the option of paying that they certainly do have that option but that is not w the state is doing with the state is doing in this case is attempting to remove excalibur from the directory based on tennessee directory statute and if they the money that they set aside there were some argument in the briefing that  that would not even accrue to extend weber's account in escrow that it would be applied to suit a max's account is that correct according to the according to the judge that's partially correct according to the judgment  connecting component that that it would go into their account if they returned ownership and an ability to sell barclay cigarettes but that's not the case ma'am but it's your position that any that's that's one of the points and i'd like to make here is that if you if the port looks at paragraph three of the agreed order the problem is afraid that the money would go into the city max and that was an agreement so now it's kind of is complaining about it but at the time they agreed to that and that's in the record that is they have to put into their own account in order to be an ongoing manufacturer is that correct well for sales of their cigarettes and how to see they would have to continue to pay int removed from tennessee's directory in two thousand and thirteen again this is not this is not a collection effort we are removing a tobacco product manufacturer from the directory the allows the cigarette manufacturers sell cigarettes in tennessee and so tend to be a part of this because tensas is not on tennessee's directory they haven't been on tennessee's dripper for past five years so what you want you removed from the directory in your position would be  excalibur having agreed to pay this in pays the money and it goes to after twenty five years it goes to tannadice could excalibur bring up private action against qantas to to get that money back or is it just gong i honestly have not thought about that and i think that would be between tempests and it's go well of course that's but that's my question would there be some way to a in richmond or i don't know your honor i wish i could answer that question i hadn't thought about that and i've been trying to trap you i just wondered if there was some sort of you know way that all this could be kind of fairly  apportioned after a period of time well again i will emphasize it's gulberg read a paragraph three of the great order and that is the purpose of that for to allow it to remain on the directory during this process of this litigation yes yes that that is correct and if there is a resolution to this litigation is there something in the creation of the escrow agreement that would require i i'm not one hundred percent certain that i mean it i mean some of the disadvantage you're talking about some of it because in order for the state to settle we have to get approvals from numerous people i understand i'm just trying to understand the lay of the l because from from a fairness standpoint did it is concerning this is the way the enforcement of this debt works it creates a situation which the wrongdoer is not the one that bears the responsibility or the burden for your stand well understand your argument that this is about the directory and i can also assure the court that cinemax will never be on tennes directory again unless they satisfy the charge of it in full i'm so yeah i did sort of max's getting away i would not agree with that they they are not in tennessee's directory and and they would certainly do everything we can to stop someone use remove there is no effort to go after that entity forward the judgment against them oh there certainly can yes and has therapy yes we did we sent a letter to cinemax demanding the money once we got the judgment the problem is of max is located or was located in brazil and i can't remember all the details but we did research collection of judgments in brazil and it was simply was not feasible to go to brazil and actually accomplish judgment and had and realized that they might be held up for yes they did know about it when we sent the information request investigating the facts they responded to it and they responded by saying guess what you can apply this statute that we think you're going to apply so they were very well aware of the fact that the judgments were an issue and that the statute that was the problem is applying in this case is an issue and certainly just to address the fairness question i can certainly understand that out but i think that's an argument for a different day i think this is argued about younger abstention and i'm not sure exactly how that fits into the analysis of  use and and you don't spend much time about the investigation what did the tennessee department of revenue to you to investigate this matter the state of tennessee sent a letter tricks caliber asking a series of questions i believe there were twenty of them and excalibur responded to this now it's true that may sound like a limited investigation but once we got the answers to those questions we had all the information we need needed to apply the statute so if there had been further investigation needed we would have proceeded with that but once once we got the responses to this question we knew exactly that the statute applied but then but then something mucked up the discovery  o the state the defendants in this case filed a motion to dismiss based on multiple grounds i assume that the district court would rule on the other grounds ok and if we do a proper younger abstention the case on the merits well be determined by the chancery court is that correct it would be determined initially by the administrative work with the right to appeal to the chancery court in the right to appeal to the court of appeals and then the supreme court has you know  was the federal defendant was the forum for dispute between two private parties between sprint communications and windstream communications and in what the court in sprint found was that because the federal defendant functioned as the forum in a dispute between two private parties your stench and did not apply so i think it's caliber trying to get a lot more mileage out of sprint that it's actually wor we have an excellent circuit mediator who can facilitate those concerns and allow you the opportunity to have a hand in help this is resolved there's i would suggest some benefit th effort to use the circuit mediators office and without getting too much into things we probably shouldn't the options given back to us were not much of a compromise but be that as it may we're it's let's go back  and talk about i heard mr butler on a number of times say that this case he used the words from the decisions he said it's akin to a criminal prosecution in important respects but i never heard any respects i never actually heard how this case looks like a criminal proceeding in important respects how how it how it is like the the examples that the united states supreme court gave from its decisions in the sprint case which was which was unanimous and relatively short and i think what their u s supreme court really was doing there was saying to a number of the lower courts that this doctrine has been applied far more broadly in a far different way than it should and i would just say you're on the put me quote there is from the supreme court divorced from a criminal context the three middlesex conditions would extend younger to virtually all parallel state and federal proceedings at least one party could identify a plausibly important state interest that result change in the doctrine from the united states supreme court to say because they said we did a clarifying a farm that younger extends to these three exceptional circumstances identified a nazi and no further and well but but then we've got prior to sprint and respectfully your honor i would submit that the united states supreme court in sprint said and they said to guide other federal courts at the end of their decision and that the now assists that has been being applied is not consistent with our dominant instruction the only problem with that is if the bottom line is they're not going to do it and spread because the controversy is between two private parties then so far as what else they said would apply broadly it's an advisory opinion it doesn't affect the two parties in sprint it's an advisory only i mean i think they were trying to send a message i really do and the what we are supposed to do i'm out of time merits of your of course i would just say that as it relates to civil enforcement actions that the supreme court in sprint set forth a number of factors that are applicable in making that determination and respectfully none of those are present in the proceeding that excuse initiated here challenging executive action ok thank you  like them to be judge some of the other options we've been even or to go off the directory which is not really an option at all so how much would that cost you to go off the directory we'd lose the right to do business in tennessee there's any cigarette any cigarettes if you're not on the directory you can't do business at all and not only that your honor there are other states that if you get it if you get delisted one you get delisted another so the next are your sales and tennessee more or less if that's possible i think there are many millions of dollars so the effects would be catastrophic and that honestly that that relates to this agreed order we many brands are your lever to judge that go in  edgefield and berkeley is the problem if we manufacture that in in oklahoma that's not manufactured in tennessee it's not sold in tennessee there's never been an effort to do that and that's that really underlines the trying to do here and you still take the position that you have no four to explore those constitutional issues in the tennessee chancery not only in fairly as the united states supreme court contemplates you get if you get the discovery you want would you nothing be able to do that in the tennessee chancery court if we got that full and fair discovery that the ale j and the chance recorder said we're not going to get it then maybe we would have that opportunity but that's not where we are to chancery court said no because it wouldn't take up the issue but it did say your honor the chance record judge did say i have looked at the ale j's reasoned decision and believe it to be correct she actually said that on the record in hand wrote it on the order so there was a there if that process is ongoing for many years that some of the issue of why we're not getting a full and fair opportunity to be her right now as we continue we should be under under supreme court precedent thank you thank you