as if when i look at this kind of smile it's like you're thinking maybe the best defense is a good office because of things that have gone by happen in other counties although i guess most of them have been remanded back to state court was the thinking here as to why you wanted to bring this particular action sure your honor i do think a good audience is a good defense and there's nothing wrong with that since one thousand and that's part t revised after we filed lawsuit square you argue with me and i saw the ad yours that we are making is that the the the complaint the retention of counsel there's there's studdard regulations that are clear you can't hire a prosecutor on a contingency you only get paid if somebody goes to jail that is a basic constitutional promise and what we are contending and courts  recognize that public nuisance is chua's i criminal it is brought in the public interest and we're saying you cannot have a contingent fee counsel whose obligation is not to do justice but is to recover the highest amount and that and of itself we say violates due process if they want to pay by the hour they can do so because the interest of the recovery financial interest is is not in reconcilable with due process and that is the basic premise of our argument still having trouble is how you square that argument with the agreement in this particular case appendix the the the point that we are making this it we're here on standing and rightness and so the question is whether we have alleged a violation an injury sufficient to proceed to the merits of it and what the court is asking about is the merits of the case whether or not we hear argument is that your due process rights are being violated sir as i understand it as a result of this contin decipher right brightness the court didn't apply the courts that all of the injuries here are contingent there they are dependent upon some future action and the court didn't actually entered an injunction on and wayne lamb let me ask you to relying on that as opposed to wyatt but it seems to me that while it might be more applicable let's go to wayne land there the company judgment and i wanted to engage in an activity fracking that it couldn't engage in without either risking penalties for engaging in a costly application process here all of the activity a issue past sale and advertisement of lead paint occurred in the way back machine so how is a declaratory judgment action necessary here as it was in wayne land your honor i think there's a couple things st off there's a fundamental that the loss of a public nuisance lawsuit based on the marketing and association and petitioning rights violates the st amendment and that that is currently chilling  stopped making residential based paints so its forty years ago was the last was the last contact at all that could be could be at all relevant here but the point being your honor and you've been the court recognizes  alito those decisions that a lot of wingsuit to go forward based on speech based on the socit based on petitioning what's a chill on st amendment rights say something yesterday in your suit that's what happened and then re assess they weren't saying what you're going to say tomorrow is going to violate the st amendment they said what you're being sued about what you would r d said you can't the complaint and remember for standing and ripeness purposes what we're talking about general factual allegations suffice and what we say in the complaint is that short and williams has re evaluated and is continuing to re evaluate its association with organizations and its market based on the the filing of these lawsuits and for purposes organizations shelf monitoring or modification of it's behavior is enough to create a st amendment home if it decides it's afraid to speak now you've got a constitutional injury sufficient to confer stand i believe that is correct what we're talking about here and there has to be something that's that's used to turn our adversary system of the head on its head because injury is about your adversary harming you not you harming that's why that's why rightness is relax that's why standing is relaxed in the st amendment contacts because self defense unser ship is to be discouraged and so when there is a law that prevents passing out of cases they back to the red scare case a lot of those were criminal prosecutions based upon speech that the government had disfavored through federal law right certainly some of them are but  all of them and when you look at it in right this which is just i think almost directly on point because it talks about the the chilling effect of associating and speaking based on if next week opposing counsel sends a letter to delaware county it says it has been a pleasure to have been engaged by the county we have researched potential causes of action consistent with our engagement letter and consistent with our ethical duty as officers of the court we see no viable clean here accordingly we're terminating our engagement injury would be would be non monetary sharon williams isn't seeking to hold delaware county liable and pay dollars for the fact that it has hired counsel what we're saying is that it violates our constitutional rights and  asking so it sounded one hundred dollars the hypothetical i just gave you what is your client's injury it will have and it will have stopped they have they have withdrawn there is no further imminent threat of a lawsuit and that is what we are seeking to enjoin so your answer is that your injury your current injury is the imminent threat of a lawsuit even if that lawsuit never comes even if a decision is made to the cli the question but the question is what if they say they have ensued and if they decide not to sue it sounds like back to the beginning of the your defense is gone up tents and have them recede sure sure your honor if they don't if they don't sue we have been redressed but the point being is the courts of recognize that pre enforcement lawsuits are common you don't have to wait for the other side to file and the question is whether there objective criteria that indicate a lawsuit will be fought and here there has been a unanimous retention of counsel by the county council there has been an engagement letter retention specifically mentions sure and williams a public nuisance action based on marketing only thing left to actually file a lawsuit filed the paper with the court and the supreme court has recognized time and time again the metamucil case for about wayne land which to me didn't seem as applicable as why it why it seems to be a more similar case that your brief attempts to distinguish the case as being one where the government hadn't taken concrete steps toward enforcement but it had sent a cease and desist letter and it had threatened legal action so we said that wasn't enough to create a right controversy and that the plaintiff there merely sata declaration to hold in readiness in case the government ever chose to to happen before sue could be fought there is no such step here they have retained counsel and the only thing left is to actually file the paperwork this is no different than madam you versus john attack where the supreme court said there was a you know there was a letter that threatened to file a lawsuit and the supreme court said it was perfectly acceptable for the other party to file a declaratory judgment action let me ask a dumb question why aren't the counties rights if we were to rule your favor right to sue being shilled they have  so the only issue you have is that the farm that delaware county has has chosen to represent it so far has a contingency is that right th financial one son to not to do justice but to maximize the recovery and when you're talking about public nuisance and was i criminal that makes a significant difference sure and williams were that the california supreme court and the rhode island supreme court both recognized constitutional concerns related to intention fee counsel and a public nuisance contingency arrangement makes a claim for a constitutional violation yes your honor i will say that the city of columbus or did recognize the constitutional court said ok but for purposes of stand we're not here on the merits we're here for standing your honor and the court the federal court in columbus and the courts in rhode island in california would have recognized an injury for purposes of standing but that's the issue not whether or not we will ultimately prevail whether there needs to be discovery whether there needs to be some sort of summary judgment motion all of those things are for a later date the question is whether we've alleged an injury and city of columbus recognize not only an injury but issued an injunction and injury that's right  absolutely the core of the in columbus it wasn't exactly the same situation counties had engaged contingent fee counsel they had not yet sued and the court issued an injunction so not only found standing but issued an injunction to protect the rights what we're asking for is the opportunity to proceed with the lawsuit that we have standing to proceed but there we go back to your  all about when the chilling effect is sufficiently concrete to make the claim right and it doesn't talk in that in that context because it isn't a standing or ripeness case what it does talk about though is the injury  and the need for mandamus action was because the injury of going to court proceeding with a lawsuit based on association rights based on speech here as it is there the fact that it's a different procedural posture doesn't change the injury that we are alleging so i really come back to judge arguments question it seems like you're asking us to be the st court in the country to hold that somehow the engaging of counsel on a contingent fee basis is a violation of your constitutional rights and my fear is if we were to do that i could just see us getting g court right now we're not we're not asking you to make that determination on the merits of all what we're asking is that we've alleged an injury and this court would not be the st to find that injury  we have both holmes county which the th circuit sherwin williams filed a lawsuit against school districts that were looking at filing lawsuits and the th circuit reversed and remanded because if we had alleged and actual controversy so this court if it decides otherwise would actually create a circuit split on the judicial filippi of these types of claims we're not asking for merits of terminations the court at a later date can determine that no it's not ready to assert that this violates due process and we can't prevail but that doesn't mean we don't get an opportunity to present  and that's what this case is about is whether we get that opportunity and the courts that have looked at that have recognized we should get that opportunity as holmes county that city of columbus those are courts directly on on the morning in may please the court gave that sign off on behalf of pelleas county of delaware and three former into current members of the county council the former members are john wayne colleen roan michael and the current members are kevin madden and brian we believe obviously that the court's october th two thousand and nineteen order dismissing the action for a lack of subject matter jurisdiction was proper and that sherwin williams can not maintain its article three requirements to show just issued billet and separately that even if they were able to do that that there is no subject matter  district court as the district court properly found and we also believe that even if the cork were to find that it had jurisdiction sufficient to entertain a declaratory judgment action that the court would be well the district court would be well within its rights under this court's refer and some of the decisions to simply exercise its discretion not to take such a county complaints that has already been remanded to the state court this court having affirmed the district court's prior decision that there was no jurisdiction in the federal court for those cases as previously played so while on the one hand they have alleged that the underlying complaint will mirror those counties complaints on the other hand the district court discord answered orders and this court affirms that there was no removal jurisdiction for those cases so what we have essentially is a state law controversy over public nuisance which the district court in this court that underlying case has said is improper before the federal courts and that this case now has come along the case when dollar county has not yet filed the will see and when delaware county has not threatened a lawsuit by letter by anything other than the mere retention of  accurate for counsel to infer or suggest that the prior fee agreement the one dollar that predates the october two thousand  the law firm at the time attached so based on the basis of the complaint it would be hard to establish difficult for them to establish that vassey agreement forms the basis and the reason why that fact is significant is that in the city of columbus case yes in fact the district court did entertain a challenge based on the fee agreement but the district court permitted t revised under the district court supervision once the fever image was revised the district court said it was not going to enter any kind of injunction and so the issue here is recall that in cit columbus numerous cities had filed a claim against him and in one complaint and there were some cities that had alleged that had already filed but t city of columbus had not already and with regard to the city of columbus the district court and michelin ruled that the case wasn't going to go forward but then when the when the city of columbus obvious lawsuits that would seem to need to be few child simply because that's exactly the relief that the district were provided in city of columbus so while on the one hand we believe that the district court was correct in its determination that there is not a conflict particularized injury and that similarly there is this matter is not right we also believe that there aren't any legal base there isn't any legal basis for subject matter jurisdiction but we did just we believe that as well set forth in our free foot then i believe that we believe that the so hard line to draw because on the one hand counsel it said if it was an hourly figurine it would be fine suppose it were partially hourly and partially can article three requirement but they but making a due process claim regarding the contingency fee agreement and the facts appear to be pretty straightforward so wouldn't that claim be predominantly legal claims that on the one hand we should not look at the current agreement because that looking at the merits on the other hand there was no agreement attached and to the extent that that agreement was superceded the fact that  mere signing of another agreement would form the basis sufficient to establish our three standing in article three justice should billeted in the in the current case as  decision to assist circuit certainly your honor in that in the in that case the th circuit and this was actually pointed out in the reversed because of a possible preemption playing in that case here there is no claim of federal preemption just like there was no cla in city of columbus that there was any federal preemption and as a result the district court in the city of columbus found that the the holmes county case was entirely distinguish defenses which we had safe here in which the district court has found to a state court complaint in our case it's even one step removed we have said that the allegations  are short on williams centrally affirmative defenses to a state court complaint that has yet to be filed and the reason why we know this is because we've seen in their various filings in other cases almost identical except as in the form of affirmative defenses and so here what's going on is they have alleged affirmative defenses as the basis for their cause of action and as the district court found it was even one more step removed from some of the city's you know heigho that have filed because the complaint is yet to be filed in this case and the idea that the county could simply stand  repudiate the idea that it was going to file a lawsuit it seems to me is really no good remedy because the idea that they would repeal the ada seems to me to be something more akin to a you know extorting response that they want from the county to be dismissed to dismiss it from an as yet lawsuit and agreed to simply release any claims that may potentially have against certain williams simply because short williams filed a lawsuit and the on for underlying sort of current of all of this is the idea that if hourly counsel are appropriate because they are financially disinterested and contingency counsel is inappropriate that strikes me for a number of reasons to be a difficult road to go down simply because on the face of it what they're saying is if the county spends money on council then they can file a lawsuit but if the county mechanism of payment should not be important now that is not to say that we do not acknowledge the fact that financial interests or disinterested may at times play a role in these cases however the  which we are currently operating clearly establishes that county's right to control the litigation and as a result even a rematch and subs subject to in ohio ultimately settled upon and so when the court ordered that few agreements be revised they work and so now what we have is a revised figure in the face of a complaint where no active figuring that between the county council was attached we now have their revoke the revised remain and we know that the revised the agreement simply puts the county in charge of litigation specifically identifying the county solicitor or any other county attorney to be in charge of the case now it is well and good for short i'm willing to say that any kind of peek at the currency issue for purposes of constitutional standing in terms of rightness and alleging a constitutional violation well i think the the answer to your question your honor is that the challenge to the due process claim is that the county has abdicated its responsibility to have independent counsel by engaging both financially interested counsel on a contingency fee basis but there are two dollars problems with that argument one is that that although that was alleged the figuring into which they objected was not attached and separately they were able to obtain through freedom of information act request the current favor him and so on the one hand if counsel is financially interested the way to  that is to make them financially disinterested by seizing control of the lawsuit the settlement to the county not civil lawyers and they're after going full otherwise the county asserts that it's simply impossible to retain counsel on a contingent basis for any and the pennsylvania supreme court in and you'll pardon me your honor i can't recall the exact cite right now but it was a case in which the commonwealth to drug manufacturer and in that case the drug manufacturer janssen pharmaceutical had alleged exactly the identical to process clause challenge in state court now the supreme court sufficient under state law in order to establish the financial disk interest of counsel and so i don't believe that separate from either holmes county or the later decided city of columbus case that any federal court has weighed into the state law issue of feed the arraignments and held that the mere execution of the fee agreement in a case before you finish will just ask you one other quick hypothetical let's assume the worst let's assume that there's no case to be had here but because of the financial incentive lawsuit is brought and not only a lawsuit is brought but counsel engages in really aggressive discovery just to sort of the worst case scenario you know borderline barratry where you're you're trying to the defendant into a settlement by using a nuisance settlement what's sure when williams's remedy if if that were to transpire well if that certainly it's a case where to go forward where it was i believe you know under your hypothetical your honor questionable and counsel continued to push you continue to push then i believe that the charlatans remedy is found in pennsylvania anyway in the pennsylvania wrongful use of process statute in federal court in ruhleben there are lawsuit for wrongful use of civil process under pennsylvania statute and if the case warn it could collect such you know could be successful and and get a judgment against not only the county but this is an actual controversy and it should not have been dismissed on the discretionary factors that the district court abused its discretion by dismissing the lawsuit but to discuss the discretion to issue declaratory judgment i don't recall court recognized that the court and it looked at factors such as whether it is contention and the the concreteness of the controversy and the court concluded it was concrete because there has been media reports about these lawsuits that were going to be filed really legal issues that the court should address as a federal constitutional rights and so it reversed and remanded for that case to proceed and what i heard from coun argument was a lot on the merits which is exactly what we suggest we should be able to present whether or not this the agreement whether or not this arrangement is sufficient whether or not our st amendment rights will be violated and i heard a lot about the contingent fee agreement not being attached if you look at j two hundred and eighty four dollars that is the minutes from the county council record this is what we had at the time of the as a target of that lawsuit so what we've alleged is that the contingent fee agreement and whether it was the st agreement or the later agreement that contingent fee basis financial interest violates the u constitution but the principle announced in bourke are that you must do justice and the appearance of justice and public interest lawsuits that that is incompatible d with a contingent fee agreement and whether or not let me go back to and i'm just see how this plays out maybe tell me how it played out in connection with the cigarette cases the suits that were brought council did have nuisance challenge by the government was i criminal matter and the contention fee basis would be unconstitutional i do not know the northern district of ohio wasn't where they  there is no argument that access to the courts here is somehow not and if there is something that should be discussed that should be discovery points whether or not there is an exception because of financial harm but this court for example experts experts cannot be paid on the contingent fee basis can pay an expert if you win the case and not if you don't because the courts have recognized the improper financial interest may take the testimony it's the same principle you can bring if you can't have a prosecutor that only gets paid if somebody goes to jail and what we're contending in the public nuisance lawsuit particularly where fundamental rights stay where you're talking about imposing liability on past speech and association that it's not about doing justice but it's about the highest there was the council had a contingent fee arrangements would those suits which among other things would include nuisance i would assume violate the constitutional rights of the cigarette manufacturers or the factures i'm not i'm not familiar with those with the jargon but i know i'm just trying to play this out how would i what would you tell us there i'm thinking at the consequences here what are the ramifications of going your way  the ramifications of going our way understanding a rightness is this that we get to proceed to the merits and have this discussion in the context of discovery in a fully formed that's the immediate consequences we're talking about and i think it would help if you would think you would think that somebody would have come up with the argument that you're making in those cases which are much higher profile than then sure when we ems case those i'm not aware of those are those arguments may have been made your honor and the favorite companies all settled and i think that's part of what we're talking about here i don't know if these arguments were made i don't know the theories that were brought under those i'm not familiar with that litigation but it's exactly the type of reason why we need to have a federal lawsuit because when even if there weren't unconstitutional engagement in those cases and they eventually lead to a settlement the issue that we're bringing up was there were not this was permissible in the st instance never gets to appellate review it never gets a decision issued because the consequences are too high and companies have subtle  though and what we're asking for is the opportunity to bring forward on the merits whether or not this is acceptable manner to give the police power of the state the public nuisance was brought under the police power to put that out for a contingent fee but if you have what you have the ability to do that to make that argument if and when you're sued we could make that argument as a defense your hon control to maintain its police power as it were with language in the city agreement that makes it clear that they have veto power over any decision made by the firm in the course of this litigation but your honor you're asking if you're asking whether the merits whether they win on the merits whether they have control which is sufficient to allow the to win and to process i would argue we've not had any discovery we've not had litigation over this this dealing with here is instructive because we're not dealing with a case in which the county decided it was going to file lead paint litigation on its own went out to hire counsel and then  forth the client and it said hey i have a lawsuit for you to bring you know that's easy but that's exactly what happened in the cigarette cases counsel went out trying to find clients at the state level in connection with the state county whatever government level in connection with possible suits right i again your honor i don't know and that's something that would be flushed out  the point being here is the council identified they investigated the claim they had done a five upon the defendants and they brought them forward and said sign on to this lawsuit so it's the investigation it's the claim not against people who own the homes in which children are being lead poisoned but against the companies that have deep pockets that haven't been involved in this industry in more than forty years and seeking to impose liabilities based on st amendment rights speech that goes back decades sometimes a century that's and i would i would argue even if it occurred in the cigarette cases  doesn't make it right where you have a lawsuit not to do justice and to use the police power to do justice but to use the police as a federal  a recovery and that's the portion we allege violates the constitution and we are entitled to have our day in court to have that determination and that's what we're asking is to go back to the district court and ultimately it may come back up to this court in this court and say we told you mr the joyous we were pretty skeptical of this we haven't changed you don't we have we should have the right to make that case to build a record and