without even providing leave to remain in reality the original complaint more than adequately allege that g m was the direct intended victim of se a scheme to bribe officials at their shared union to inflict harm it would seem clear beyond cavil that g m could bring a civil rico action to recover for the injuries inflicted by that city it's a question isn't it of directness how was that employed to do rectally impact g m so thank you your honor i mean i would say ultimately i believe the test is proximate cause which is informed by directness i don't know that there's a freestanding correctness test but that quibble aside i would say that you know there's really sort of two phases to what went on and in the st phase in the context of a union that is typified by pattern party which i think is important because in this industry generally if you get a concession everybody gets so much so in the context of that industry specifically in the st phase before the two thousand and fifteen pattern bargaining process f c a obtained benefits for itself through bribes and we allege equally secured through bribes that commitment from the union that proper will benefits would not be passed on to g m and what the what do you allege that would show that that was the scheme so to speak and the assurance that comparable benefits would not be passed on to g m i'm struggling with the mechanism because the idea could have been your opposing counsel argues well they just wanted to bribe the debbie a to give them benefits and surely they hoped that it would h unions agreement to lower f c s costs but to essentially refuse to passed on those benefits to g m so we allege that originally and then of course in our proposed amended complaint which we don't think you need to get to but if you were to get to that we really provide what i think is the missing link which is we allege that they have extended their bribery scheme to the specific u a w official joe as was the u a w official for the g m and to me i mean again we're still at the allegations state so we haven't had any discovery but i think that allegation absolutely ought to seal the deal for us because if they're simply securing benefits for themselves and not paying to get those benefits not passed on to g m there is no reason they should be bribing the u a w official for the g m a and the way you a debbie was set up i mean they have sort of a separate little division for the chrysler can't separate division for the quarter can't and a separate division for the g m account and that seems to me to be such a powerful specific allegation it's as if we have caught s t a so we allege making bribes not to nitsa in general but to the specific fishel responsible for auditing to yet what do we do what we do w h it seems to me there intervening actors the the workers are the bribes hurt the workers to the extent that they're concessions so they end up giving up or and or they are the ones who ultimately approve the c b a s so why don't they in some sense break the chain of causation or are the ones that are able to vindicate their rights action but i don't think it's not the same action or injuries aren't derivative that they are it's and then when you get to two thousand and fifteen then that you know are allegations are essentially  conspired with the union to raise the labor costs everybody including g m so as to that two thousand and fifteen allegation the unions not even injured so we're the only people who are in a position to bring the action but just to get to the nub of the question i don't think the supreme court's precedents in this area say that nobody else can be injured at all and i point to specifically bridge which i would point to as last actually the last supreme court majority opinion on this issue because my friends on the other side want to rely on heavy but that's just a plurality opinion as the proximate boss and in the bridge opinion specifically i think two things are important one at one point the opinion justice thomas says yeah the lower court said that this that the county was not injured at all here and the defendants quibble with that but that's not really important because if the county may have been injured but only in a different way in a more speculative way we think we're very analogous to that but we also think we are absolutely directly analogous to the hypothetical that justice thomas used in his opinion for the court to prove the point because in addition to talking about the actual facts that were before the court of course you talked about a hypothetical where a company made misrepresentations to the shared customer pool it and it's right you can magic company basically saying hey my rivals closed for coke and telling all their customers that and the court said that the rifle could bring an action even though and what the course of course focused on there is the fact that the rival could really actually even though it didn't directly rely on the misrepresentations they shared customers did but i think if you think about that hypothetical there's no question those trust him or zz are also injured oh most in the exact way the union is injured here which is they presumably paid too much or they went to an inferior supplier product that's the misrepresentations but because the whole point of the scheme was to molt the rival then i think that that is why the court under those circumstances use that you know get it framed it's own hype so if pick that i think is a relatively obvious case where a rico action could go forward and we think that's really controls she wrote that short three paragraph opinion and she specifically said in it and i'm quoting i join the you know i keep her in the judgment quote without subscribing to the broader range of the court proximate cause analysis and so if you do the marks analysis on the heavy opinion there is no question that you get to the justice ginsburg opinion as being the narrowest of the opinions and there  no question it provides zero help for my and my friend on the other side because justice ginsburg relied on the fact that the city of new york couldn't collect taxes directly from penny and the fact that there wasn't a cause of action t jenkins that you know that that doesn't no good and i do think this is an easy case for the marks analysis because what she says the sickly not agreeing to is the broader pronouncements in the plurality opinion about  opinion i would also note there really isn't any tension between wallace and perry i think they're both judge pull in fact if memory serves and so all perry said is and i think absolutely correctly is the fact that the underlying rico predicates were conduct was intentional doesn't matter and of course that only makes sense to me that you know that the plaintiffs they were trying to say well this is this is an intentional essentially tort not like a negligence southward and that doesn't make any sense because almost all of the rico predicates require intentional conduct so a line that simply separate applied different proximate cause test when the predicates involve intentional conduct would make no sense to perry rejects is consistent with wallace we don't like i don't think we need you to rely on wallace because we think it's good law but my point is i think if you put wallace aside for a nd and just look at  bridge which are the only majority opinions i think the law to clearly emerges is the ultimate test is proximate cause directness matters and so does foreseeability at least to the extent that you were talking about and this is the line that justice thomas used multiple times to bridge if the plaintiff is the intended target of the scheme then it's an easy case for directness they could have made just one more that you were referencing the natural the forseeable and natural consequence of the scheme but the court goes on to say and there are no independent factors that account for the injury there's no risk of duplicative recovery just removed at different levels of injury from the violation and no more a maybe a victim is better situated to how do you fit within those qualifications for say your goal a natural consequence well i think it's most clear your honor with respect to two thousand and fifteen and apparently a finish my answer please i think it's most clear with respect to two thousand fifteen because there are allegation is that g m rather f c a conspired with the union to impose it was an agreement that had unusually high labor rejected the offer contract and then kind back and the next contract of course was richer but if there had been a scheme while warrant why wasn't the vote of the union an intervening controlling people in the leadership of the u a w but they couldn't bribe everybody in the reconcile so that the classic intervening call was no because we're not we're not injured were injured it's the ultimate deal that costs and that's just the way in a career that's because we were negotiating this is the way the pattern bargaining works we were negotiating with the union on our own before they picked a definitive bargaining pat partner for the pattern bargaining and we got it we were negotiating towards a much better deal than we ended up with and why did we not end up with the better deal we were negotiating because s c a conspired with the u ultimately approved by the u a w rank and file and that's the agreement that raised our labor costs and so we can prove that and connect the dots then i think we actually have a fairly straightforward standing just case where we just have to show the general motors it was a better deal than the deal that we had chrysler chrysler their workers were in a worse but bargaining position they were weaker they rejected the deal you think you could have gotten your rank and file which had more bargaining power would've approved this deal why is that like if you don't have a deal it doesn't matter if you have a deal with the u a w the the rank i have thought so prove it right yes but i i mean st of all i don't know that the way that the approval works is it's sort of agreement by remit but in all events what i would say is we think that we would have gotten approval from the union who would have i  think understood that they were negotiating with the strongest party and this was the best feel they're going to get so if i could take one step back to i know over my time but i want to give you a dance the way that economists who study pattern bargaining have concluded independent is that the rational thing for a union to do is to negotiate with the employer who's in the strongest position and then try to use that to get a better comparable deal with the weaker employees employers right so one of the things that looks so suspicious not just to us but to neutral economists watch in the industry here was the fact that the union picked f c a to do this deal now presumably the u a w rank and file has a sense of this too so when there's a deal that the leadership has negotiated with a they may be particularly suspicious of that because they know that f d a has the lowest labor costs going in and so the rank and file may think i'm suspicious about this i think i can get a better deal m if you consider the counterfactual world where we're picked as the bargaining power partner and we come up with the deal based on our stronger position or higher labor costs i think it's going to be much more likely that the union where they're presented with that deal is going to be like yeah this is the best deal we can get here is what i'm struggling with it seems like much of your argument it uses the words of speculation i think this is what economists believe and your opposing counsel argues that it does not rise to the level of stating a klein because you are speculative and you are inherently speculative think claiming we should have been the initial bargaining partner we would have been the initial bargain in carter and then this is what would have happened even though as anyone who does lybrel on knows the reactions of the union my surprised people and what the body wants what the rank and file wants may not necessarily be what the economists jest is the best thing how do you move your claim with these intervening rights of others to either move it forward or cut it off how do you move that claim to the level of sexual specificity necessary to stay declin well your honor i mean you know ultimately i think we get to a level of greater specificity eventually by getting some discovery but i don't think there's any lack of suspect specificity or undue speculation in what we allege we allege very specifically that they with their bribes were in a position to inflict higher labor costs on us that's what they paid now we may or may not be able to prove that but that's what we allege and if we can prove that that is a direct  we also allege that they control the union and if you understand that that's the part of our nine hundred and sixty to be allegations there's nothing in direct about this we were dealing with the controlled entity which is the u a w directly to our detriment i don't think you can be any more direct than that and that is essentially a quibble into the nine hundred and sixty two a two of the labor management relations act are what caused the u a w to give various benefits concessions and advantages to f c a in the negotiation implementation and administration of collective bargaining agreements the problem with this however is as the court explained in boats hammy group and the actions that allegedly cause the harm to g m are distinct from the actions that constitute the predicate acts the harm suffered by g m as mr coleman just said was caused by the collective bargaining agreements with the united auto workers which is not a party to this case and it is those agreements that g m says caused it to have higher labor costs the labor law violation the prohibited payments did not dictate the terms of g m s collective bargaining agreements those agreements were in very substantial part the independent actions of the u a w the members of the u a w had to bow whether or not to ratify them and by g allegations and paragraph seventy one dollars of the complain at face value right to the allegation is that there was not only a payment to the union in order to get f c a benefits for itself which similar advantages were not provided to at least g m despite it seeking similar programs and concessions close quote three of the series of those there's the drugs there's  i mean that is next gen right they are you brought you got it we don't so you still have the problem your honor as was pointed out in the earlier argument that even if that's all true you have the notion that there was a deal agreed to by the united auto workers and g m there are many many factors that go into something as complicated as a collective bargaining agreement the membership of the u a w rejected that deal  it had to be sweetened then they go g m under let me understand that let me interrupt just to make sure that you're format in your response to some of the other concessions that i'm talking about to employees which is i substantial difference in costs include those in your response please i don't think that i was intending to your honor and i still think that the proximate cause distant court pointed out is very very difficult because you have all of these intervening events between the payments which allegedly and there's a but for cause problem here because fifteen and the negotiation of the two thousand and fifteen collective bargaining agreement didn't begin until september but putting aside that sort of but for causation problem even if these payments resulted w that relies on these prohibited payments it's exactly the sort of analysis is in where the court said what hurt the plaintiff was that you its competitor lowered its prices but the complaint that they lower their prices to gain market share or intending to hurt their competitor and in fact the scheme had succeeded with that have been ok and other words i don't i see in and there's this possibility that all of the that they could have done it for other reasons but in this case there's a specific allegation that the bribery was done to hurt g m and it seems like it did hurt g m so why isn't this just an intentional tort and yes the causation chain may be a little bit attenuated but don't we relax that the cause ation in an intentional tort situation where you actually accomplished what you intended to accomplish i think your honor of the justice kennedy addressed the court's question in specifics in the end he says the nd circuit reached the contrary conclusion apparently reasoning that because the ends of the legibly sought the gain a competitive advantage over ideal it is immaterial whether they took an indirect route to reach their goal kamelot circumvent the proximate cause requirement simply by claiming that the defendant was to increase market share at the competitor's expense that is on all fours with what g here and this is not a court case this is a rico case brought by a an economic competitor of f c s and the cases make very clear but the proximate cause require me in and you are good at it right i mean the whole thing and riko them to organized crime so that's its core so you're really good at organized crime and you're really good good at this so you set up your domino in this way and you're really good at it so you know that when you push the st one it's going to fall and it's intentional like you've thought through all the things and it works your not liable and that just seems weird if you're if you have a simple minded scheme well then you just kept the st domino and all you're aiming at is the nd one well then there's light billing but if you have a complicated scheme more easily less likely to be detected well then you're not liable it just seems weird to me well your honor i i think but you know the cases the supreme court precedents if you look at all holmes talks about the fact that the rico proximate cause requirement was predicated on section four of the clayton act you know i th of injury in the antitrust context and if we look at the three homes back in this case g m does not fare well at all which is this brother confirmation that it's it's claimed injuries are very indirect means there are st more immediate victims of these prohibited payments and i don't work for the workers who not only had an incentive to sue your honor but did we now help general motors workers well now there's no victim the next victim in line is general motors management the company so now they can recover correct in that kind of  i don't think so your honor i think that you have to show a direct causal connection not between some broad based scheme which which mr coleman seemed suggesting but between the predicate acts which here are the violations of section rio two of the labor management relations act and these false tax forms which didn't mention this morning for good reason  and in the alleged harm which is increased labor costs but there are too many steps in between payments to the u a w even if one dollar could be accept the proposition that those pieman are what dictated the the positions taken by the u a w in bargaining with g m you know there are you know at a minimum there are the decisions by the rank and file members of the union about whether to in temporary workers fit in to that analogy because if you are have the only employment the number of t money than they otherwise would have when the same is true of the sale again but the union saw pedalled grievances and health and safety issues raised by f c a workers if that really happened if that was the consequence of these prohibited payments which i do not accept but if it did mistaking it has given them the people who were hurt were not g m but members of the union  otherwise didn't have their grievances taken seriously or their health and safety issues taken seriously your honor as i see that i have run out of time i and i would like to address the motion to amend but i don't think i have  practices and that they hurt the workers there is no allegation and as of course there is and none of the criminal cases that g m had anything to do with the prohibited payments or was affected by them in any way or one quick jane then the g m workers that are employed have fewer opportunities to be either a tier two or a temporary worker so the g m employees were somewhat benefited in that they kept their historic status right but i am itself was harmed because injured people being the workers who got paid less money or in in your hypothetical if i understand it correctly people at g percentage of a employee and the lower historical attentional or percentage of tear to employee and temporary employee though the mere fact that that g m employees may not have been adversely affected by this alleged corrupt scheme to let f d a have more to fear two and more temporary workers doesn't change the home's analysis of the ins analysis that the most directly affected party by virtue of the prohibited demons were the workers at f ca you know we can you can always go out you know further steps into the you know the proximate cause you there are but but if you're focusing on what the supreme court has said is the important factor which is who is the most directly affected what is the st step in the chain of causation that is the f c a workers your honor and what happened to the g m workers you know that is really of no consequence i would say what more could question legs could actually be either council could answer that question it doesn't really matter but where is forward in all of this like i just it's a it's just a question i have well  well that's a very it's a very good point your honor because it's also a holmes factor that other people under the theory asserted by g m could also do and then you'd have the risk of multiple recoveries and apportionment of damages if g m is a complete bystander to these prohibited heman said standing under rico to sue then so does ford and toyota and honda and volkswagen and all of their tear one suppliers and all of their dealers that's exactly the sort of thing that zapruder courting home said you shouldn't allow to happen you need to have a direct causal connection to stop half the world from having standing under rico which was never intended to be some generalized federal law of torts it has very strict requirements in order to allow someone to prevail which is why the local tax officials to audit the rival company now if that were the allegations and on so i don't think it would remotely been dismissed for lack of proximate cause your direction is and that also helps explain why ford's not suing here a had an obsession with g m they wanted to take it over in a merger and therefore they had a distinct incentive to insure g m and not just benefit themselves to the detriment of all other the answer your honor is because it is not just the fact that we were it it that s t a benefited itself and all other entities subsequently were hurt it's the allegations that they had a specific intent to m and that's going to be very rare to allege and this for me to another point i was hoping to make which is another aspect of bridge which i think is very helpful is the discussion in and around footnote seven of just thomas's opinion where he points out that the proximate cause theory we're relying on here is the proximate cause theory that underlies essentially every intentional tortious interference with contract or tortious interference with commercial advantage it's not some exotic motorized step process it is basically our competitor didn't just try to compete better but they specifically targeted us in unfair way and that not a general tort remedy so it goes on to say the three categories that we spoke about earlier that independent factors accounting for the end generate duplicative recoveries a plank is removed at different levels and no and without these problems so just translate the answer that and then get to my last point was to actually related helpfully the st of all i just think if you focus in on the allegations here there i think we actually fare quite well under those other factors that bring us well within reach because and your colloquy with my friend on the other side brought this out if you focus st on the pre two thousand and fifteen allegations about  specifically to deny concessions to nobody else is injured by those allegations other than g m and when you pressed my friend on those allegations he kept i wanted to talk about two thousand and fifteen but in the pre two thousand and fifteen pounds text we're talking about concessions that are being given outside the normal three year pattern bargaining process where it's a direct line we want those same concessions we're not getting that we alleged because the u a w official septembre there's no atsic lot of it my last point is even if it's to some of the allegations somebody else is incidentally injured in a different way that can't be enough to poorest out under rico and the reason is that the most classic imaginable rico violation is a so called bust out were organized crime infiltrates a legitimate business in an effort to defraud the creditors of the region at this every time that happens the equity holders in the legitimate business are also going to be injured but i can't imagine that the creditors infiltrated legitimate business don't have the classic rico cause of action so what i think holmes is getting at and i think it goes back to the all being based on the quite neck you can't have like an indirect purchaser claim where you're bringing the exact same injury that somebody else has but if the union is injured in some different way and we are the direct and intended target of the scheme we still haven't actually under the law thank you roger now will we thank you both for your briefing is excellent your arguments were excellent and this is a complex area so having that is an advantage to us the case will be taken under advisement and an opinion in she can do course you might call the next c