thank you your honor judge cooled before our official fifteen minutes start and i think thirty seconds to clarify not more argument just my co counsel and i miss roe we're going to divide up today's argument between the two of us and the reason confusion about that would that be all right and the way we'll divide up today's arguments is that i'll take the lion's share of the argument because market the milage haps position centrally encompasses that of the d individual player as it were aligned in all respects all the arguments that the individual plaintiffs make marcus the military makes as well mark the militia as one additional argument and so all to my best to cover the waterfront and in the event that the court as an issue was something that requires the attention of miss rose particularly the individual played this show be prepared on  just like a good player so thank you linda very well may it please the court the district court's judgment in this case d needs to be reversed and the opinion doing so will have two major components the st component will address from the case entirely and also committed a standing error about what issues are and it was wrong to exclude the issue of the instate presence requirement so our submission is that once those standing errors are correct the court should then look at the merits of the nationwide cases that whenever a younger abstention issue arises courts evaluate how far along the federal cases and he praises embryonic if the federal cases that embryonic stage which is to say before any proceedings of substance has occurred then if the younger abstention requirements are met abstention might be appropriate but if the federal case is beyond the embryonic stage just to say if any proceedings of substance on the merits have occurred then even if the younger  abstention requirements are satisfied younger abstention still is not appropriate and so that was one of the leading arguments we gave below and that's the argument that the district court accepted and so it was true when we argued younger ascension at the district court that we were far past before number one is that in order for younger extensions to apply you would need proceedings below that are of a judicial nature and the only substantial proceedings that occurred here were administrative proceeding reason number two is that the underlying proceedings need to be criminal or qualify criminal in nature and these underlying proceedings are entirely civil reasonable three is a party identity problem the only parties to the administrative proceedings that issue here are the individual place this with my client mar of companies are not parties to those proceedings and the th reason is that there is an exception to the younger abstention doctrine for cases of irreparable harm and this is such a case recall that the rights were asserting here our constitutional right be free of laws that violate doma commerce clause and the loss of those rights is irreparable so those are for reasons that on the sort of some of the question aside from timing younger extension shouldn't apply and as judge a and the case there's also something  procedural problem the apple e's didn't cross appeal and our position is that the younger abstention doctor is not a function of article three case or controversy requirements so the court doesn't have to reach it we think it belongs to a party at the comedy based  octoroon and if the state to whom comedy is might be owed has no problem with this case as they don't the court doesn't have to reach it on its own thank you thank you roger so with that out of the way would like to address the standing issues as quickly as we enter a two critical errors one is about who can sue and one is about what issues are in the case and we think both of the standing errors arose from the same misconception and that was the district court and the defendant below focused too much on one part of the analysis and that was the actual administrative and course of proceedings that took place during the pendency of this litigation d now those actual enforcement proceedings are a point in our paper on standing most certainly like susan b anthony list we can set it up in standing not just in one way but in three ways and we did it all through here the st way we did so is we showed express threats of enforcement the nd way we did so is the show the actual acts of enforcement that occurred during the pendency of this litigation and the rd wave last but not least is that we showed the clear face of the laws that issue imposed the prescription and the district were focused only on that nd piece of the analysis and we think it was wrong on those terms but the court doesn't even we try to do that's the rule we see in this court's decision in the desert outdoor decision and you can see the same thing play out in the nationwide decision if the face of the law we're going to give you a license or a cooperate certificate but only for some small set of rule solves that problem know and they were disciplined or conducting business with our allies as well and they could apply for then it is possible they could apply for a license i'm not sure why you show that you you have a injury here the injury your honor is that there is no license that we could apply for that would let us in gauging the conduct pursuing and there is no corporate certificate that we could apply for that would let any of these people engage in the activity that we're suing for remember standing should be focused on the conduct at issue and not the legal reasoning that the state gives to punish it are you worry of the case is simple we want to engage in cooperative brokering and we honor they could obtain the license but they can't use it because of the in state presence required let me maybe state the point in this way the state of nevada is required to give a constitutionally adequate means of access to this market and there are two ways that certificate the fact that marcus the military has an office there doesn't solve the problem if counsel for the other side wants to change positions now they can but we've been through four years of this litigation and never once have they taken the position that we can do what we'd like to do right under the current regime their position consistently has been we can't do cooperative program with a license because of the in state presence requirement and we can't do what we want to do with a cooperative certificate because it bans the just got punished by the state for engaging in unlicensed activity the parallel is exact and the same rule applies here another facet of this argument of course is the rule that in one thousand and eighty three dollars cases plaintiffs don't have to exhaust local remedy a version of some licensing requirements but we would need to see the exact contours so if it were this license requirements because of it's in state present element then the answer is no but  true the in state presence requirement applies to everyone but that was exactly the same thing that was true in granholm and that was exactly the same things that was true in nationwide the whole point is that by definition a broker who is not already in the  they have to arrest the business there and do business from that place the same thing was true in granholm the same thing was true nationwide this is the heartland example of an in state presence requirement it's not that once we get the license we can't do anything with it unless we physically come to the state of nevada and that's precisely the violation that we're looking at now the state could construe i think your honor that this brings up an important point our position is not that these brokers an agent should be able to practice without any regulation and there are two important points of this number one is that this case has nothing to do with the separate laws about actual misconduct laws like fraud and misrepresentation those were perfectly in forcible before this case and they'll be perfectly enforceable this case no matter what this case is only about the licensing regime and it's only about this economic battle of who can come into the market and not and so that's a critical distinction and the more importantly our position is not that the state can't come up with some licensing regime or some cooperative certificate requirement in the markets the militia works with states around the country to comply with things that are like the co op is to fix it but in those cases the cooperative certificate regime is constitutionally open and showed there are easy alternatives we just found a less restrictive alternative part of the analysis there is an easy way to solve this problem it's not that any cooperative certificate and any license is wrong that this quadrature ticket and this license is wrong in the little time that i have reading let me say this the one thing we've never heard an answer to from the state is why they allowed co operative certificates to be used for some kinds of transactions and not others and i think that's the critical part of the case that's never been answered if they have an answer  i appreciate the time and i will try to keep it short i mean the court if you represent the individual plaintiffs the not the company those are the commercial real estate brokers here who were disciplined for doing nothing more than what their national investor clients wanted them to do and one of the key points in the record is that in the face of that seventy percent of commercial real estate transactions that involve either an out of state fire or an out of state so we know that this is a inherently national market for which supply and demand require robust proxy marketing and national expertise and according to the state of software alive and one problem with that is the interface presents requirements but i would go a step further and say even if there were those in state presence requirement and even if we were only talking about no operative specific certificate just a license you still have to look at the price balance because this absolutely affects a national market this isn't like a dentist or a hairstylist this is more like the regular stock market in the stock market if you told somebody you could buy stock in about in on their own and contract conduct transactions we're asking for them to be able to engage in a profile d j type situation where they can get the expertise of the local broker who voted for them that is responsible for all of the local issues just like happened the court the nd response i would have to your question just say it is that the commercial real estate bracket bull market is actually much more inherently national the legal market one of the examples in the paper that is quite typical of markets the military climate is a client who owned one hundred and two red lobster restaurants in twenty five different states and they want to dispel those and they wanted their broker their trusted broker who has helped them over the set out can't market it can't put its name on the advertisement in the new york times it's got a turnover lucidly to a local broker that the client has never met so that's not what happens in the legal concept i think the corrupt beach is a good example but i think the the interstate commerce burden gone from original real estate much more significant because of the prostate nature of commercial real estate in this market hurt the out of state for uppers who want to compete on the basis of their national expertise their national client base it's her out of state investors who are being told they can't use their trusted broker in order to sell the property to her in that state property owners due to the depressing effect of decreasing the supply and demand and through the depressing effect of the national marketing and the only group that actually helps are those particular local the data brokers who choose not to participate on the national level anyway that a broker can always develop his expertise themselves they can always work with an out of state just quickly take you through the the abstention requirements are established in owen which is the fact that the case is ongoing which it is i would argue that this case could be considered as a criminal based on the fact that in the so it does i think technically all of those and i would say it's up to this court's discretion and i'm happy to address the merits and counsel you think that even though there was not a notice of appeal we i'm wondering out loud if it would make sense if the panel thinks it's prudent for as they ask our counsel to submit supplemental briefs on the issue you think about whether we should allow supplemental briefing on the younger issue as to whether we have support judge school ringback and if you're heading out the individual plaintiff being able to challenge the licensing and certificate struction of the nevada statute and that was based on a careful analysis considering injury because they sion and regress ability  noting that there there was no injury to the entities and even if there was an injury to the entities any injury to them was not actually caused by the things that they're planning about as this court has noticed there is a there are actually two offices of markets in those chat in nevada so no one ever complained about physical office location requirements nor was that small state very much trying to develop itself and so the idea was prior to that basically they just allowed they only allowed people with life essentially and so in an effort to expand that i i think that they wanted outside investors and they didn't so much care about people selling the property as most of them were probably about a citizen i'm i'm sort of speculating  regulation that is very similar to that of that and the north carolina court said when as happens with increasing frequency in our state the buyer is an out of state investor with complex interests and concern statute may not be small we're carolina's structure so i point that out most mostly to point out that we're not the only state made that decision you know and you you you referenced  fishies and i would say that many states make that decision because they're looking to expand their other miss the point they're not actually discriminating against the end of the state they're trying to expand their li to allow some out of state limited somewhat limited of the state investment and then the nd part of my answer to your question would be that then the real estate division in nevada wants to be very careful about how far burden on the scene to enforce those provisions becomes absolutely impossible trying to track down people who have violated nevada law or regulations who are no state presence and  on its face are these licensing requirements even handed if they treat anyone special well in this case the certificate actually proves the artistic expression because it allows it to come in without getting a that and is to on to cite the statutes of what the goal and purpose of the real estate division is and that is to establish that in the intimate  law out of susan b anthony list ending does not require past injuries we do not have to show that our places were actually injured in the past all we have to show is that if we engage in the conduct we're talking about cooperative pro the defendants are going to say that it's illegal and they just spent fifteen minutes saying it's illegal and trying to explain why that's a good idea ending has been a fabulous the next thing i have to talk about is the mirror and i want to talk about purpose and proof counsel on the other side said that this law was enacted for a good and legitimate purpose that is wrong we caught the defendants red handed you can see evidence of why the cooperative use restriction was an act that is on the record that you are  taken away from the battle licensee we caught him red handed explaining what the purpose is and there is no evidence according to purpose argument you heard from my friend on the other side the other merits argument i have is about proof proof is absolutely required to carry the summary judgment burden of the door commerce clause the state absolutely has to prove up the pipe down test this is not rational basis you can see a litany of citations we give you the supreme court decision in the piper case we give you the supreme court's decision in the frazier case public policy foundation speak to this point exactly that they have to actually show hard physical proof of how the pipe balancing test weighs out in their favor they can't assume that there's a need for a regulation and they can't assume that this way of regulation is going to succeed the last thing i'll close that we still don't have an answer to why they allow it for some transaction why they allow it for others this is a whole more arbitrary action that violates the former commerce was under any level of scrutiny thank you