my name is howard ha kirk i am a senior deputy attorney general with the pennsylvania office of the tourney general i represent the appellant the commonwealth of pennsylvania and i would like to reserve three minutes for  the commonwealth is entitle to attorney fees in this case because it is a substantially prevailing party under section sixteen of the clayton act the section provides for a non discretionary award of the tranny fees w injunction the section it was acting under in this section the parties when the courts rely on section thirteen so on to the plain text how is it that pennsylvania can get these under section sixteen when the action under which prevails under section sixteen of the clayton act then we don't think you have to get to that question because the commonwealth up this lawsuit and certainly as a result of that jones in the district court who said that this was all part of the same nucleus of operative facts and that in this type of situation the even though th the f t c they didn't do that and we did not know how things would play out and also it was for us as judicial officials see those for future cases if you say no you're not entitled to fees in this case it would just prompt parties like the attorney general to say well we'll just have to file our own separate action and there is something different but when substantially prevailing under section sixteen of the korean act and for instance a section nine hundred eighty three were seeking fees under section nine hundred eighty position in court but at that point it's too late done scramble the eggs the merger has already been consummated and you know any type of meaningful relief is a loser but you t paying for compensatory education and they won that fight so there was a marriage determination in each one of those cases cause of action here we don't have a marriage determination are you asking us to sort of ignore the singer extent all these cases and even when you say well maybe they're a little different they do show that there's not that absolute rule that you never get attorney's fees you know in a case like th but it cannot establish either first pennsylvania did not substantially prevail in an action in this case as is required for the shifting under section sixteen of the clayton act how because th succeed that was the basis for entering a t r o and after the court made that finding there was a voluntary capitulation a change in the state's legal position and this one singer said that neither was enough to justify trippy shifting but you have a section sixteen mandate by congress if you get an injunction you get fees because we're going to incentivize people to come into court private attorneys general if you will and say this is wrong this shouldn't happen and that's what happened here and we reversed the district court's determination and said you know you get your deserve an injunction how is doesn't doesn't the plot and use as an example of when there would be an alteration america's determination or consent decree but it didn't limit the opportunities when there can be a judicially sanctioned  court the only relief as this court noted in it's opinion that is available under section thirteen b is a maintenance of the status quo pending any merits proceeding in the f t c administrative tribunal and that is what the score was very mindful of and it made clear that it was simply maintaining that status quo not altering any relationship between the parties if you look at page seventy six of the appendix this is in the complaint the plaintiffs and sounds to find the status quo and i defined it as vigorous competition between the hospitals the hospitals are well established doctrine of constitutional avoidance might want to not reach the constitutional issues necessarily and the idea was we don't want to undermine any incentive by punishing a plaintiff and taking away theories in that situation that concern is not implicated here in any way  not that the statutes written differently that section fifteen u s c section twenty six were all calling sections speaks of any action under section in which the point that prevails that language is that language communicate  important point is the courts don't it's stated in the footnote that accompanies a fine and we presume that the hospitals will begin sharing competition information and distributing patients to different facilities they are presuming because there is no evidence as to the speed with which the and such and thirteen be it say that section sixty only for the proposition that pennsylvania was was in the case under that section and i was the only  but section sixteen such support a different standard that was never mentioned in that complaint the complaint quoted section thirteen b in its entirety walkthrough the factors never said a word about section sixteen about irreparable harm about harm to the hospitals  plaintiffs continued that conduct throughout the litigation they strategically chose never to litigate under the stricter standard and this goes to the concern that this record of presiding over the steeples litigation articulated in denying identical request by pennsylvania for fees that the plaintiff in this situation a state cannot have it both ways they cannot choose to litigate a case exclusively under the more lenient thirteen the standard are going to do whatever they can not in their best interest in the case but simply in order to obtain fees and that's not the way that this court has instructed us to assess these things instead we look at what the parties actually did and there's a reason that pennsylvania would not that it is under section sixteen affirmed so i think the court basically understands our position however i did want to point out in section sixteen of the cleaning that it specifically talks youth against prison conduct will cause loss or damage is granted by courts of equity under the rules of governing such proceedings and upon the execution of proper bond against damages for an injunction improvidently granted and showing that the