good morning ladies and gentlemen we are here this morning to hear today's cases and just for the record i want everyone to know that judge rove inner is here participating by video so you'll see her as you approach the podium so with that i believe we're ready for our first case of this morning good cat elsie against coke st you liquid act has no bearing on any out of state entities except for those who wish to do business in indiana i think much of your argument to that effect fails to recognize that one element i'll say clause forbids states from posing extraterritorial regulations on other states but the whole notion of a of a national market under the commerce clause forbids that in our panel opinion found in that there is a specific jurisdictional hook on every piece of the statute why does it make any difference to indiana whether somebody is an employee or an independent contractor if they're doing the job for a company i can't fathom why indiana needs to reach into florida or any other state and dictate such a detail i cannot speculate on to let as to the ledgers legislature's thinking in that regard your honor however as i understand it what the legislature was driving for here with the utmost independence with respect to security firms with whom he sent it to use his contract well i understand that but actually i'm going to ask you to back up sure and explain to me why your clients the intervening compan have standing to appeal this injunction which does not run against them and which is against only a party not before the court yes your honor i believe that there's no question and there's been no argument here that injury would be a result of the potential competition that will result from good cat obtaining a permit and beginning to operate in indiana and as it is dependent  that in the exactly the same situation where competition what at that of was increased as a result of the injunction and that is since there is injury the only question left in that instance is redress ability here well but you know it reminds me of  line of in a trust cases where the competitive injury is that you're going to have more competition certainly you know which of course is not permissible under the any trust laws that's the brunswick against probable amat case your clients are unhappy that good cat is going to be in the mix and perhaps other companies if this indiana statute is relaxed to the extend our panel and look at all thought but the the main point i want to say is there's no injunction against you there's nothing to set aside and the indiana authorities for reasons best known to themselves have not objected to the injunction against them i understand your i can't speculate as to what as to the trying not asking you to i'm just saying why are you here because you are not subject to any command of the court certainly your honor however i believe that that's not necessarily and actually that that is not necessary under article three stand and this is a twelve ninety two a one appeal is it not this is a preliminary injunction yes your honor so the case will continue your clients can say whatever they wish to say to the district court as it continues or i think your article law is clear even in the cases cited by good cat in this case that there is standing here as long as that there is an injury to the permits and the injuries redressal that injury here is recognized what our clients did was they scaled the barriers to end it to enter into this market yes of course their injury is more competition but there's nothing unlawful about that there's been no and i trust allegation here at all and for challenges to this law there's been no allegation of any interest from me because this didn't come up until recently but i mean instead you make what i think is a very weak argument that good cat itself has no standing seems to me good cat standing is straight forward but for these security provisions they would continue to serve the indiana market they've complied in  substance it's not that they found their nose it indiana they contracted with security firms they put together all of the things indiana law requires it just wasn't for being being provided by mulhouse and that seems like something well beyond indiana's authority certainly honor and if i may even if this court finds that there is no standard for us we submit that this is an issue of primary constitutional support importance it is not a contract look it's not if you have no standing then we have to dismiss the appeal for lack of a party with state withstanding and in the fullness of time the final judgment from the district court will come up i understand your honor but i believe this is a this is a constitutional issue that is too important to be missed it has no no there is no exception to the rules of standing for really really important things i understand your honor and if your honor still unconvinced at the end of that well in any event your honor i believe on all the cases here there is injury absolutely to our clients and it is directly redress a bill in contrast  i'm sorry if you did if you dismiss the appeal with the instant appeal this case your honor right is moot because legato resolves everything i understand your honor the only way that this kate is case isn't mood is if one of two things happens i'll admit the first is if this state the attorney general review from the supreme court and that review is granted right because it's not seeking rehearing here that time has passed that's correct your honor the second way is what we submit the court should and must do in this instance respectfully is understood and can i add that i can't find any case in which we have ever considered a decision of this court non final just because somebody might file a petition for search i understand there are no such cases i understand your honor but i believe and my research tells me that this court has exercised it liberal forty review i thought discretion i believe seven or eight times in the last six months of last year to revisit and in many cases overturn prior decisions of another panel circuit will forty allows this court  that new york can regulate out of state dairy conditions and require compliance permits of those out of state businesses that want to do business in new york the ninth circuit or rocky mountain farmers if you corey said that california can impose strict manufacturing standards on out of state refiners petroleum and the condition of doing business in california on the second circuit national electorate pool so that from our can require compliance with manufacturing and labeling conditions of any out of state manufacturers who want to sell in vermont what the seven circuit mystere respectfully with the utmost respect again was a focus on the rigorous of the regulation not whether or not it was extraterritorial you know it also said you know suppose another state decides it has to be an independent contractor because that's a more stable relationship where  would have a conflict and it's impossible to both have all your employees be employees and all your employees be independent contractors at the same time yes your honor yes there are many conflicts like this maybe they like one saying christmas two for the kitchen's you know if go ahead three things must be shown for inconsistency of regulations to be a problem the fact that there is a threat of inconsistency is not sufficient the states are the laboratories of democracy the conflict first must be real and right it must be right before us the law that might threaten c to issue a permit to good cat which was necessary because of the private cause of action otherwise at the permit these would have against good cat and so the good cat as of now has the has a permit that was ordered by the district court and its products intervening appellants here even if this court were to order the district court to be keep the preliminary injunction and especially in light of the god of vapors decision there is a potentially intervening causation problem for article three standing defect as well to the article three standing on the on the redress ability issue particularly and why this must be dismissed is is that at the end of the day that the opponents are not as the court suggested bound by the by the  rely on this narrow exclusion from the national from kendall jackson winery the judge easterbrook talked about where if they had somehow some extent to tory cause of action to compel the a t c to take some action then perhaps they would fit in that narrow exception also there is no sort of property right associated with protection from additional competition and so that doesn't provide a basis for them to compelled me to see to do anything and so at the end of the day i think this court must dismiss this appeal for lack of subject matter jurisdiction there simply is no article three standing this is exactly like objects winery and exclusion from the indiana market was the denial of the permit by the a t c and in clearly the denial of the permit was because good captain not satisfied the security firm requirements and there's only five narrow requirements that issue our challenge is actually much narrower than the challenge that was an issue and we got a vapors so what further proceedings do you anticipate once this phase is over if it's given that this is a preliminary injunction that we're reviewing right with once a judge district court judge excuse me you know as the final judgment after the mandate issues which i believe is going to issue today out of this court then i think at that point a good cat is clearly within the scope of out of state many factures that are subject to being you have in as a court as george hamilton said in the opinion there in two hundred years of precedent out there from the u s supreme court the courts of appeal that there are there is no instance of the state attempting to reach beyond its borders and ohio here's the type of padlock you must put on your on your barn doors before going to let your milk into the state and i think that's exactly right that's exactly what the situation is here i think the we got a vapor scandal thoroughly evaluated and looked at all of those cases  correctly resolved that you know the case  which only four are operative four are located within the state of indiana want to split really just over the border in cleveland ohio and the other one is in florida but there's a seventy five percent owner of that florida entity isn't resident of indianapolis good p r i went through all the procedures tried to jump through all the hoops that were put before and was rejected by mobs at the end of the this is a case about the state outsourcing discrimination to a private entity and the state campus hide behind the fact that there's a private entity out there think the ivy williams case out of the fifth circuit makes that pollution the clear and if you look at the statistics ninety percent of the revenue from randy liquids came from those manufactured outside of indiana before the effective date of the sack and the district court not given given the the preliminary injunction to good care out clearly that would have probably there would have been reverse we don't  exact figures and we there's no way we can at this stage because no discoveries been entered into in the in the there's no evidence in this record about how big a problem adulterated they being fluid is actually there is you're out of the state has stipulated in the stipulation vapors that the state has no evidence of there ever having been any contamination or sabotage of the liquids in the manufacturing process and they don't take a position i think with that's one of the factual stipulations on how possible or probable that could be now and this goes back again to the issue of article three standing intervener say well that's a state stipulation we're not bound by that well that's exact reason why we can't be here and hear these sorts of appeals without the state being present they can't cherry pick and take the good and leave the the good cat was also not required to prove in order for elevated scrutiny under the norman commerce clause to apply that that this was a complete hundred percent air tight embargo and i think washington apple advertising commission makes that clear there you had a circumstance where the north carolina regulatory scheme sort of unfairly levelled the playing field for washington apple  producers because a different more than a very well accepted and highly detailed level of classification of their products in north carolina effectively said you can't use if you're going to sell apples in our state you have to use the federal one and the supreme court said we're going to apply elevated scrutiny despite the fact that there are still probably washington apples coming into north carolina because it strips the washington apple manufacturers of their competitive advantage of the help from their system and i think this court's decision and government suppliers consolidated services of the by also suggests the same thing and so the practical effect of the back call me on this is one of the least cases would be to reduce very significantly but implied implicitly saying not necessarily totally eliminate  the into a lot of state waste into the state of indiana so the district court and i think the district of the sic a sort of fall somewhere on the continuum between balancing and strict scrutiny i would it's properly within the strict scrutiny bucket but even if it's not there's not an issue under pike balance and given what we have here in terms of the statistics of who the players were in the indiana likely manufacturing market before and after the effective dat of the act there's been argument here that they had rational basis is the proper the proper test apply it clearly is not true that only applies when there's absolutely no  reallocation of market share among many among participants from various jurisdiction in state and out of state and there's and there's no competitive advantage for local firms for sa to state from squarely here that here there is a for nothing more than the geographic proximity  and at the end of the day if we look at the w two as your honor suggested w two employees first independent contractor distinction or whether the security firm has a has a manufacturing facility for doors it really gives no further i think your honor with respect with respect to esteem council he's wrong and directly wrong on one thing and that is that there is never been an instance where a state has reached beyond its borders regulate manufacturing practices for those who wish to ask access the home states market that's exactly what the ninth circuit didn't rocky mountain opinion here she including the concluding paragraph where it said that indiana's regulations are kin to an attempt by ohio to regulate not just labeling but also the heating cooling and other conditions for out of state barns where the cows are milt and it is this exact law this exact law that was indorse by unanimous supreme court justice cardozo writing involvement the ceiling in that case the court said what the save new york should do if it wants from on producers to get access to its retail market is if it wants to care for the cattle impose regulations on the dairy farmers in how they treat the cows ok so i think you have your argument so thank you very much like your daughter and the court will take the case under advisement