with three issues what is what i would call the exposure issue the nd is the relevance of whether books where it could have made a clean easel to begin with and the rd is the proper because the exposure of the fraud was that was what caused the harm in the front self and i'd like to liken this to because what part of them was the exposure of the fraud as opposed to their underlying which was fraudulent but what is the underlying harm me or because it seems like you know when when your client was selling the cars that it turns out later i guess they shouldn't have been selling because there's been violation of law or at least legit violation of law you could have continued to sell them and you would have been out it's only when that when the admissions fraud was discovered that then your client was harmed it seems to distinguish this case from the example you were given  claim we we made and you couldn't prove that books could have ever made clean cars and i take issue with that because whatever there's a fraud all the more most times when there's a fraud the it did the dealerships have a contract with folks wagon that guarantee them a certain inventory to be able to sell each year so the dealers have a dealership agreement that's in the year you would have been guaranteed an allocation of those eight hundred dollars big your allocation would have been ten percent of what had been originally projected price right and that would be in our in the dealership it's saying that you know if there are strikes or eyes that they would have been a much more expensive than what the what the provided to ne reason for the fraud was that they could produce those cars that would have been that would have been viable in the market so in order for them to do that you they would have to increase the car let's make up a number three thousand dollars per car that certainly that's what happened here i want to make sure i got i got this right so you're telling us that you do not have to account that you may assume for purposes of your suit and your damages that the t v eyes were provided to you at the price at which they were provided to you but they the brawn so i don't know i mean unwittingly apparently but you were able before the fraud was discovered you were able to sell more cars then you should have been able to sell because you know to judge by this point that would have cost more and therefore you would have sold as many so the fact that you benefited from the broad now you're coming back and say wait we want that same benefit from the fraud after the it's on bottles side a feeling they have the burden of trying to use the benefit as mitigation and they were they were but they could have done that and they chose not well the question here i agree with you except for the fact that the in granting summary judgment to the bosch defendants given plaintiff's failure to establish the existence of any cognize will rico injury cost me cause by bosh all the district court found that there was no material issue of fact as to proximate causation don't look at the a certain injury at a very high and generalize level so for example in the city of hama it's a case the court said you can't just say loss of money and therefore mn i'm in the game as to injury what they're saying that they lost v w vehicles that v w in its discretion creates b w has gas cars and has diesel cars so there's no promise in that dealership agreement that they're going to get a line of t a property interest at all and that seems from my perspective as a bridge too far from the argument well that's we can go to causation as well but i think if if we start with the lack of a  l interest under state law because where could they base that they don't have it in the franchise agreement it's exactly like the claim in the city of aman say where the court had a look at what the injury was because there was an extra territoriality quo ashton and  they said that the city that came to united states to bring their lawsuit said we had money stolen from us overseas the courts have all that's not an injury which are injuries who are losing money and they say how you losing money and so we now are in court  trying to recover that money and they say that claim to loss of money is just a downstream a fact of the actual injury that we can't reach and so here i would say what is your position that any never played a presenting claims lost profits profits could potentially be and that was that was the question that the judge focused on on the motion to dismiss let's take a step back originally the claim in this suit and this goes i think both to injury and the causation is that when the fr was revealed these dealers were left with unsellable affected vehicles the vehicles that were non compliant and the judge said yes that is an infringement on your right to sell your property according to the terms that you want to and that could include lost profits we went into discovery on that claim discovery revealed and the point is have been consistent about this below and up here they have no losses as to the effect that non compliant vehicles that were in their inventory  when diesel gate situation was exposed once to stop sale orders were lifted they're able to go ahead and sell them at a profit some better than what they were doing before and they otherwise recovered all their quasi costs so there are no claims based on the vehicles in inventory which in that context could have had a hawk to a loss profit component but they didn't lose anything so now what they're saying is zero well i lost profits and the the right to sell the line of t i compliant vehicles through twenty seven that in fact were never created manufactured by volkswagen and there i'd say it falls both as a matter of that's not an injury to a business or property interest under state law but also on the causation question that your honor raised before and that teaches that you have to look at the injurious conduct and see how it relates to the claims injury and so on on the conduct that the plaintiff was complaining of was that his competitor was selling products for lower prices he said he was able to do that because he was in paying state sales tax in new york and the court said nothing about the nonpayment of state sales tax required a lowering of prices at the point of complaint was there injury in this case so to hear nothing about  volkswagens rico condo alleged rico conduct not making compliant vehicles required them to make a decision that they wouldn't make compliant vehicles as the judge focused they probably couldn't the evidence in the record is no evidence that they could produce compliant vehicles but it was completely within their discretion to move towards electrification and more gas and that's what they did so you already have this attenuated causal chain and then it's highlighted by the completely hypothetical exercise the court would have to go through which i think justifiably your question went through which is try to imagine what these compliant cars would supposedly look like how much they would cost whether the dealers would get an allocation of them if they would be sellable and what they would make from them that's the exact cause they should problem that's one of the elements in the mendoza factors holmes factors about the inability to separate suppose injury from the defendant's conduct and have been sold i mean who knows how many but why isn't that enough for them to show some injury you know and then it's a battle of the experts it becomes a jury question conduct was the provisions in these dealers of the non compliant vehicles no injury as those sold at a profit completely covered and then they want us to say they want the court to accept ok well that's fine but there's a bunch of compliant cars that may have been pretty in some alternative worlds and weren't tiles the problems that through two thousand and twenty seven and that actually puts them in a better position than a volkswagen have made the compliant cars to begin with because in the scenario where there is always compliant cars volkswagen always have discretion under the franchise agreement as a manufacturer to stock the line and produce whatever kind of car it wants and then to allocate those out so it's to go to the ponzi scheme example that mr berman started with they're actually saying the ponzi scheme ended well i'm still entitled to twelve percent to twenty six twenty seven dollars as the ponzi scheme continues to fall that has no basis in law or the case law and it's also the theory they disallow they say look we're not trying to claim damages as if the nonsense is continuing we just say but again it's not based on any rights in the contract and he cognized will state law concept and completely divorced from the elation our requirements down by the supreme court and fall by this court there there no that is hinged or connected to those requirements when they say i get this hypothetical compliant revenue stream that doesn't exist in their view would you agree that this case would be different if the dealership agreement guaranteed minimum number of cars if the dealership agreement guaranteed them that they'd oh the hypothetical is they have a guaranteed right to five hundred dollars diesel vehicles and because volkswagen stop selling them or stop making those cars then it sounds like it's a breach of contract claim and remember we're two steps removed this agreement again doesn't speak to diesel vehicles it's speaks to authorize product which in a no that's right and i think that's part of the problem for the latest from my perspective but i'm just wondering if there were provisions  are on track that would clearly make this different and the most obvious we would have been you know a minimum requirement of vehicles that had to be provided that would presumably then they would have damages for those the loss of sale that those that had been provided but those that's not in that the correct it's not the agreement it's also interesting right because it shows and what we've really been talking about certainly i can't imagine a contract in the real that says rico is not about taking a breach of contract claim and turning it into trouble damages the area because there are non delivery of vehicles would have been the result of their inability to produce the vehicles that's not the recal conduct the recall conduct was the delivery of noncompliance vehicles and that's really what they should have which they did base their damages theory on that's in their complaint the last t d i lying comes up in later complaints that was not in the original complaint they served was thrown in there i think as they realized hey we don't have any damages based on the stuff that was the actual product of the injurious conduct the creation non compliant vehicles i think if you don't go to the claims right to service on back vehicles again you stumble the plaintive stumble on the same two steps i do want to say because it's in the brief and i think we're right that is not an injury to business recognize that state law there's no state law that recognizes a general right to you know cars out in the public that you have a claim to be able to service those cars but even putting that aside again we're now several steps removed from the rico conduct so there is rico conduct there was a settlement as part of the settlement v w offered to people either will buy back the car or will fix the car you have some people some people didn't so you have an intervening choice of the tumour in terms of vehicles that came out of the system one hundred thousand went back into the system the buyback was through the dealers who were paid to process the buyback and if someone's car was bought back that gave the dealer an opportunity to sell them another car and so if you think about the potential for duplicative recoveries going on and it is very important e r for six their own expert when he talked about the buyback said i'm doing it a class five basis because it would be daunting and difficult to try to figure out to trace the stream of cars and how that work to figure this out for any individual deal or it can't be done and that sort of  here they got their discovery we got it discovery it went on for two years and they and it shows in their own experts says it you can't show the injury here and you can't have the direct proximate cause ation that's they would have gone to gas cars he says who knows what the world would have looked like that's an argument at trial because on the record before this court in the district court is we have an expert opinion judge prior to n fifteen that has a minimum life cycle under normal business practices according to our expert of seven years so we had a legitimate basis for a damage model showing that our dealers were in fact injury cases that and canyon are both distinguishable because the players in that case according to records were not direct victims of fall with respect to the injuries and the dealerships we are