morning your honour's may please the court kevin king from covington and burling for the appellant m g m with me this morning a new roman from covington yuri clinton from m g m and our local council jim robertson from comedy torrance your hono act fifteen seven grants to connecticut indian tribes an exclusive pathway to develop the state's first commercial casino the tribes asked the legislature to pass that law legislators designed it to support the tribes and the tribes hailed the equal protection clause and the commerce clause and an injunction preventing the state defendants from enforcing those and upon your interpretation i got a different interpretation from the other side but we do your activities gaming applications are barred right so if you thought the act was in big u s i think you do have some would give it gives a i think you you've made the point that it puts the thumb on the scale for the tribes but the thumb on the scale is not it's not the same thing as exclusive certainly your honor and so that would go to our third equal protection claim which is that we're boxed out entirely right and so you could certify that claim which does depend on a construction of a state statute to the connecticut school connecticut supreme court course we have two other equal protection claims which do not depend on that sort of state law intermission and that is whether you have standing because there has to be an actual injury and that means that the injury has to be concrete and must be imminent and i don't see how it's imminent here because as far as i can tell you have a you have expressed some interest in doing business but you haven't made an application and understandably because  we look at it your honor is that casino development or casino that the casino process has two phases special active hundred seven splits those phases in half right it focuses only on the first phase which is the development of a casino it's all the things you would need to do to put together a viable casino project which would include among other things identifying a site arranging for financing and most critically executing a development contract with the host municipality want to she has just if i can ask one more question why wouldn't you make an application in the normal ordinary course outside of the act to see whether or if you really are serious about about a good c e o i see how that is is treated and at the state those who would come in and say oh you were right all along this is exclusive or what they were saying as well again to do two things your honor first off it doesn't need to be an imminent injury if it's an ongoing injury and that's the case  court in the williams view lambert case that the plaintiffs need not participate in a discriminatory scheme to have standing to challenge it and that it is specially as true for our matthews argument under the equal protection clause right that doesn't depend on whether we're boxed out entirely or we're not because the act and especially section one b of the act grants exclusive rights to the tribes and not to us and what does it say why did you treated you as though you were tri aid because i find it hard think of samuel goldwyn as being a native american but suppose it is that's kind of what you want isn't it i mean that's one of the things you want is if you were treated as though you were  it would be equal treatment and that would be ok that's right your honor we don't necessarily want the label of a tribe we want that the development rights that are afforded by this act under whatever flavor that they they might be whatever label that you know that you would be treated the same way they and that's that's exactly right we're looking for equal treatment here and our injury in this case your honor is the denial of if you do the exact same things outside of the statute that is can't you seek proposals can't you engage in negotiations with either way you're still subject to getting approval or actually a change in law from the state legislature right we are in for injuries where about the operation of a fully licensed casino but again to go to my two stage  honor we are deprived among other things of a right to publish our request for proposals on a state agencies website the act section one b grants that right exclusively to the tribes and not to us and so under matthews we have standing and if you're looking for a case that exactly what it is it's a it's a very kind of an injury that isn't it's not a real and but i suppose you you can make or have made the argument that the statute is a signal i see them i read letters on mansur yes you can thank your honour's so yes it it we do argue that it sends a signal and i think the signal matters even well before the state decides whether or not it's going to authorize a third casino it matters in the development process and i would i'm sorry but what i was saying is it's a signal that there will be in others that it is a signal that they're there very well may be another statute it's also a signal that the tribes project has the state's backing and support which makes it easier for example for the thumb on the scale you know we'd have an equal classic equal protection analysis it would depend on the type of scrutiny we argue that strict scrutiny would be required because the act of screen it's based on national origin or race on its face right it gives several exclusive statutory rights i mention one of them in section one b but there are others exclusively to two entities based on their national origin or their race and not us and so it would basically be a question of law your honour's it's not a factual question i think there are questions you're pursue a casino in connecticut but what the supreme court said in jacksonville and what this court said and williams is even if you can go forward and do that if you're not able to do it on the same terms on an equal basis as someone else that you're competing with what are the because the tribes are voluntarily using this travel business entity right special activities seven doesn't require them to form that entity it doesn't require them to issue an r f p it doesn't require them to do anything if they don't want to but they're voluntarily using it shows put your views well we've identified several locations in connecticut bridgeport is one place where we would and we have alleged and we think because this is right next to you know perv we certainly we would to have the opportunity and that really is it is a key issue in this case your honour's is that we have alleged that we're ready willing and able to compete in connecticut in bridgeport and elsewhere already and will enable but not having taken any steps to do it you're restricted by the fifty mile limit from so you can go forward or either be an evil protests append but i don't know that that's that's sufficient understanding at this point because you haven't taken concrete steps to to  to establish yourself as you see again your honor i'd point you to the supreme court's gratz decision where the supreme court said that's a case that involved in admissions at the university of michigan and the plaintiff in that case had not applied to transfer to university of michigan but he'd allege that he was able and ready to do so in the supreme court held that that was sufficient for standing we here have alleged that we would participate in this development process but for the discrimination and if you're looking for another case the six circuits walk a few cases the very same thing you say injury m g m is not cited in defendants are not located a single case from any court where the stand in standing in truth found to be imminent in a situation where the claimed concrete benefits of the competitor it the initial bill would have authorized casino operations in the legislature there were concerns were expressed regarding kind of the complications that result would result from that and the legislature decided to take a more cautious wait and see approach and the tribes may have decided and i again carefully speculate as to what is in their minds but that given that this understand the state's point to be th there's no concrete benefit to this statute and if that's the case why does it exist why was it passed the reason why that is correct your honor that there is no concrete benefit and the reason why it was pat released concrete benefit to the tribes the reason why it was passed is because what it does and i think this is very clear from the text of the statute itself is it creates specific procedural requirements to address concerns unique to the tribes and requires that the process relationships contract or religious tween the state of the tribes there is unique legal certain kind of background surrounding kind of if one were to move first and so there were reasons you need to try that would apply to anyone else and so to opposing makes it so that they are competing against both tribes acting together the same time that is correct your honor but and that can't be a competitive disadvantage to have both of free as the material described fierce competitors to come together and operate jointly is necessarily a detriment and why why would not be a disadvantage is to me to not have access to the to the website the tribes have access to the website it's the government's website and therefore it has the imprimatur of the government and so this is this is this is a why they got it exclusively it but not others so earlier and and so i'd like to there's kind of two responses to that one is that there is no benefit at least no appreciable benefit to it in the sense that if you look at the record the record is clear that the tribes are not relying on the state website the tribes have a separate web site that they are running there was no cost to the posting on the state website and really the requirement of posting is just part of the transparency requirements that are being imposed on the tribes but secondly and more importantly in my view is that all of those questions and pretty much all of argument goes to the first part of the analysis which is the question of injury but if the court looks to th look at the plausibility in the context of kind of the statutory framework your honor and so i would say that when you look at the overarching kind of other requirements that are imposed on the tribes that it would not be plausible that the website posting itself would constitute an injury and this court is not required to accept just allegations of injury for purposes of standing under the carter case and ashcroft isn't it possible that i'm side in this use it workers w according to google you know but it's with them i'm no haven why wouldn't i be inclined to look first at what has been essentially in a way approved im argument but i think it's quite it would be quite myopic to look at it purely in that sense because if you look at the text of the statute it is couldn't be more clear that the legislature is sending a signal to the senate signaling anything that there is a real likelihood that nothing will ever be approved and that's consistent with the evolution of the act it went from granting authority for licenses backing off after legal concerns were raised and saying we need to slow down we need to keep a very careful  everything that happens to make sure there's nothing that could risk patients at this stage my tone and voice just an answer that i don't know but are you suggesting that this statute actually cast doubt as to think that legislate the text is clear and so the courts would not need to look further but like their history is very clear and in this is you know complaint it started off we were in a great authority the concerns were raised about the legal issues that that would create and then they backed off very far to the point where they were not we're not granting anything we may never granted i think it was a could be looked at the other way and that is to say the legislatures and gee we can do this once let's do it piece by piece you do this first and choose whether there's an injury now if the court looks to our inverses pain which we discussed extensively in our briefing the injury in outer ring was very clear and there was a clear financial incentive to the government to contract with the plaintiffs competitor so this decision and they're ready willing and able but there's a statute that stands in the way he couldn't be clearer i posit hypothesizing if it expressly excluded other competitors i think that that would get m a ways along the route to establishing the first part of the pain your analysis but it would not help with the second part which is really i think the clearest part in the it that's the imminence requirement that the owner must never do or i mean what could they do under those circumstances if they had a prospect of a casino being authorized then that would be a very different case than this winter but how close do you have to get to be a prospect they say they have an interest they want to do it they they did in a find some locations but they say they're barred and so what my question is is why doesn't this entire case on the interpretation of that statute as to whether it's a complete are or are not as you say you are my time is up m been i believe that it this case if you look at and i think i'm sorry keep on going back to the same point your honor but like the painter case in that case there was a very clear injury there was no question the supreme court said there is no question that there is an injury here so the court then said in its own words we must go forward to assess whether that injury is imminent for purposes of standing and in that case what the court did is it looked to the question of whether the contracts using this benefit were casino in an area that m g m could compete for now keep in mind and is excluded from us most of the state of connecticut by its own radius restriction and so m g m said they referenced several areas in their brief in their  only one i recall seeing as bridgeport this factual allegations as to bridgeport were that a couple of years ago a couple of people expressed interest there's no indication of a current interest and if you look at the legislative history trying assume and they can answer better for themselves like they're concerned about the potential competition but this could the competition is nowhere on the radar screen certainly not imminent if it was going to happen in a follow up on j consider in the standing analysis and so at the time of the complaint in this unusual complain this action nothing that happened no no me just tell you to responded no effort or if you've been issued no travel biggest business entity being created nothing had happened but if we were to look to the current status of things every municipality that i'm aware of that has submitted it or like in response the r f p is with well within the fifty mile radius restriction and those if a casino work were built in one of those locations thank you your honor so judge i'll start with your question the fifty mile restriction is purely contractual and so a standing decision based on that contract would essentially be this court's who respond to enforcing one side's rights under contract we could negotiate that although i don't think it's important because we have alleged as a factual matter that we're ready willing and able to develop in bridgeport among other places and judge chin you're absolutely right this is a twelve b one motion are factual allegations as long as they're well pleaded must be accepted as true and that's this court's decision  in the supreme court it all which said the plausibility is the standard implausibility is not a probability requirement right or factual allegations taken is true merely need to support a reasonable inference that m g m is injured by the acts discriminatory s or right at the outset of the case there's been no factual development no discovery the merits of the case or not before the the court the question is whether we have article three standing and our allegations are plausible fall all the reasons i've given which would include among other things the tribes own statements and the statements imminent that's right your honor we've got a proof standing at each successive stage of this case and our burden increases as the stages move on and at the beginning the burden is quite well we need to plausibly allege that summary judgment we need to show a genuine issue of material fact backed up with with more than just allegations right we've got it depositions discovery things of that nature to back it up and then of course a trial would actually need to prove that but here we are right at the outset of the case and just on the point of whether the act is a burden or a benefit this court said in denny v dortch a bank that the court doesn't weigh burdens against benefits at the twelve b one stage instead you look only at the benefit side of the ledger so i think that's very important  we have alleged as a factual matter that section one b of the act the website provision benefits the tribes for example by making it easier for them to negotiate and to obtain financing from investors because investors are more likely to commit to a project as a state backing then if not and the seventh circuit in the lock to flambeau decision found standing based on exactly that sort of interest it is a thumb on the scale your honor it is the state showing its imprimatur but you don't need to take our word for it you can instead look at the statements of the tribes and of the legislators the tribes hailed this as a major milestone that's what's at it's a major milestone because it gives them a special pathway a state sanctioned pathway to this you will get to twenty seven to thirty one it's in a call with investors it's a quarterly earnings call and they said this gives us a pathway it's a major milestone for that reason it shows that we have the state's legislature support that's a that's what they said that's up to twenty seven to thirty one of the appendix he's also have reacted and if you look at page eighty at the bottom this is a newspaper article which to mr dakers point was published in july two thousand and fifteen before we sued before we filed our first complaint and it says enfield for example whose interest was in doubt at one point has more recently expressed serious interest in the tribes and said that municipalities were responding to the statute and are more likely to be interested in negotiating and executing a deal with the tribes for a casino than before and the tribes come around right after that and say on eighty one we're on the verge of incorporating the chairman of the of the tribe said we're close to announcing the formation of a new joint venture company that will manage the r a p process so all of this was imminent right at the outset anything in the record i know that the m g m made an application under the act which i'm sure you knew would be tonight but is there any indication in the record that m g m has done anything to pursue a casino in connecticut there is your honor in our in our amended complaint and i can give you that the page if you give me a moment we'll edge that we've conducted a fuse ability study with respect to the connecticut market and we have determined that a connecticut casino would be both desirable and plausible and this is a pages twenty one to twenty two of the appendix m g m regularly develops casinos around the country and we pursue this market in particular we haven't had a chance to produce that feasibility study i know it exists because w