we called the first case for today two thousand and fifteen three zero one zero seven monumental task committee versus anthony r fox at evidence in the record on appeal the risk of irreparable physical damage and injury to the four monuments at question is so great if the city attempts to move them and the cost to the city of letting the remain in place is so small that this court should grant an injunction a preliminary injunction to question from the district court unless there is no chance whatsoever that any of the plaintiffs can prevail on any of the causes of action understand it but maybe i'm wrong on that man the city i mean the city county tended to counter the expert reports that the plane just put into the record first on larry rather show and second from thomas bruno with an affidavit from a to demolition contractor named warren shambo he used to shambo told the court that the he had hired all plain of louisiana and he said it was one of the most reputable and experienced clean companies he said it had done high risk lifts in the conduct construction industry and that it was more than qualified right but that company is not involved in the project at this time was not inv mean it was not involved but more important judge currently today involved in the project will it be the company with the professional experience to make sure the money is no way to know there's no way to know judge judge bobby a relied on mr shabbos affidavit he said all crane is a high performing company judge judge but he said all crane is in the top handful of companies to be engaged in this kind of work before the case  really calling into question why the city introduced not the davit saying that he had hired does the city have i guess unless the city has to they have evidence in the record that there is another reputable crane company that will make sure it's not shambo addressed that question and he said he contacted all of the reputable companies all of the companies he thought could handle it there's only a handful of them and he is in the record on appeal none of them wanted to get involved in this on the merits apparently and did did anybody request that normally i don't know what remains to be done in the district court what other information would be put on at the time trial but normally in a like this it would be converted perhaps but maybe someone didn't said please don't so when it's really remains to be done the judge allowed the parties to introduce stipulated witness testimony allow the parties to introduce expert testimony situation i don't believe anyone asked the judge to do it and i don't believe he did it on his own volition so what remains to be done will all of this disappears be put on again and when is that hearing scheduled try to decide this is a stopgap in the middle of a case is that in the posture that it's presented it's a win is the hearing and what's going to be done there well if the injunction is granted which we certainly hope that it will be then we will return to district court and we will begin the process of doing discovery to find out information to flesh out and sealing on the few gaps that remain to be filled in with respect to the facts even if the injunction isn't granted won't she proceed on the merits that you were entirely well yes i mean yes when we will go back to district court now we don't have a date for that and we can't say oh well this is only for a month and so we should wait till the merits or not wait because it's would you quote any of the expert testimony the portion that you rely on most to show that he had committed a clear error finding that there is no irreparable damage both likely threat of a repartee quote the experts yes yes i did not you know and i  moves and the appendages are subjected to such a fickle force that it was that sounds to me like he made a conclusion that it's possible a skilled or i guess unskilled crane operator might not find the mid point it is the players are not legally your your you are in the district court at the hearing judge barbie a said to you is there any case that stands for the proposition that the roman phrase codified at twenty two ninety seven you rely on to prove a property interest goes beyond a claim for compensation to vest you with the property right and at that time you said yes there is but we haven't had time to find one so i'm asking you a very specific question what is the case that extends that doctrine to give you a property interest i believe the case is decided in the in the what is the case not whether it's cited in your brief what is the case that stands for that proposition and i keep asking why you go back there because your brief at page eight begins the entire argument saying you don't need to describe the cascade of errors he committed because they all turn on the central finding the district court's finding you claim as error that you have a property right in these monuments so what is the case interpret ing that provision that gives you a property right you are not we never claimed and we do not claim today we own the monuments and i know what case stands for your claim that he erred legally when he didn't extend twenty to ninety seven to vest you with a property right patrick versus young for fifty six southern second six twenty two louisiana one thousand eight hundred stand and you're saying that stands for the proposition that negotiate for a gesture gives you a property right it stands for the proposition that money will task committee has a recognizable interest i jli when i when i when i encounter phrases in a latin phrase that are difficult i start with black's law dictionary and i didn't this case and black's law dictionary cites kant's commentaries on american law that explicitly say that this doctrine does not vest the just door with a property interest i think the louisiana cases of concho you ok you would have to say that and that's the case that you say stands for that proposition on a standard motor car company versus state farm ok so you're saying both cases yes or clarify that that doctrine give someone a property interest in the item that they benevolently manage if they don't have a property interest you and they would have no right to seize the thing they would have interest is the right well the right at a minimum to be compensated for its efforts actually but he said a member but can you tell me articulate any legal theory that any more than that well but if we're talking strictly monetary monetary interest i would say there's no case that would say the  finish just because you take up the possibility that they may be some damage or that it goes to a factor that ought to be factored in yes but the predicate of this is that you have some possibility some will at least some why can't one thirty eight has a property interest because they are the party the successor in interest to the party that paid for the monuments oh through these this interest ok it is either one of the plaintiffs i regard monumental windows or the i can't one thirty is the legal successor the ip the information was put into the record on appeal but put into the record with a district court that do they have an actual legal interest in the land because the land was donated to the beauregard to the boat regarding monumental association i've gone and tried to because i didn't think that frankly your brief helps me with that i've gone trying to trace the land and who owns the land anywhere in your brief in the brief as a property interest theory as to that particular money just give me the page of your brief in the brief in the record on argue oh yes on the land you didn't make that a is reckoned on appeal is absolutely filled with the exhibits and the testimony that shows camp one thirty eight is the legal successor to the bargain monumental association and that the money raised for the beauregard monument funded not just that monument but then went to the louisiana strong society for the enhancement and maintenance of many other monuments including the davis mike can you tell me where in the record it says that the include that you want i suppose that you can each file twenty eight days on this issue if you wish to do so and i give you each two minutes extra because i still have questions about the land ownership of jefferson davis monument and liberty apply for a monument on the opportunity to explore that further is what we asked is what we want to do in the district court i just want to you have to have this stuff in the record now because we have to review it to see if there is any cognize of illegal interest so the day is a monument if the debt davis monument association is one of the plaintiffs possible interest does created it dearly want a confrontation with a lot of it it starts with compensation admitted it starts with compensation but but what we're asking this court to do is not decide on the merits but rather just give us the chance to go to the district court with the status quo maintained so that we can pursue and so on and explore these issues fully remember your honor this is this is a case that has never had the first bit of discovery everything we've been able to show the court came from the public domain from the public record from our own archives we're asking this court for one simple favor maintain the status quo because there are serious legal questions due process equal protection ownership of the monuments maintain the status quo of the question and three years throwing out but i don't hear any record basis before us of any legal just here to tell you that for whatever value maybe to you just went through a negotiation period you circle back to that language such as we we want to explore this to develop a legal theory sound have a right to the to the aesthetic and environmental that is to have that is that environmental interests recognized we focused on property interests because that's what judge i want to ask me about but other we have several other dollars to build those streetcar lines they had to comply with section one all six of the in h p a and section four ath of the department of transportation and they did so they could not have removed those monuments while the street cars were being renovated or built they can't wait a few years later having accepted that federal money having promised to abide by the in h p a in the d o t act are going to move any street car l one question when you move to your arguments to the federal defense and the street cars back to what in your brief before us that's preserved you will make that argument on page thirteen one page of argument did you cite a single case as authority for this federal defendant argument defendant is irrelevant to the present appeal no it did not go down but i thought that's the word you used in your reply brief that the arguments are irrelevant to the instant appeal i pod by said something in incorrectly want to know irrelevant to this underlined appeal what did you mean by saying that the arguments as to the federal defense r t are irrelevant to this appeal ya know right now i can't tell you exactly what i had in mind that that they are absolutely critical to this appea drafting error an editing error but the thing is please don't look at one word everything we've done in this case has focused on not everything much of what we've done has focused on the federal claims national strike preservation act now the city of new orleans wants to understand and there are bits and pieces in the record about who may have been originally donated land but i'm looking at the arguments you're presenting so you think yes reversible error by judge barbier not perhaps i misunderstand what the purpose of the briefing is it's to highlight the the main points that you want to present to the to the court of appeals i don't believe by east that where we've been held to waive all of the arguments that original brief dopamine the court that these are not these claims are not abandoned these claims are not irrelevant i apologize if i've said something makes it appear that way with their critical because we recognize  in the proper federal form to enforce that consent order or to prevent the city from banding the consent order so the would be monument is absolutely the anchor of all of the of the federal claims because the city and the federal government have agreed to look let it remain in place essentially in perpetuity because that's what they consider order said order argue to the district court that you actually have to go behind and see if the consent decree should continue to be in a fact like like you do in school litigation or something to see if you can if it still needs to remain it argues that parties agreed to set that issue aside the city of new orleans agreed that what god most of what happens in this proceeding time regardless of what happens in this proceeding they would not move against the liberty monument and that's key because the living monument the ordinance that  good morning your honour's my name is adam swann second i represent the city of new orleans and mary mitchell i'll be taking eighteen minutes and dealing largely with all questions but the statutory questions that i am of course happy to answer any questions  simple and firmly settled question of louisiana law that has been true for decades if not centuries namely a public body has the power to remove a public thing from the public right away however it does if the city council can put it up we can take it down it is a matter of the local government the legal position are saying would be no different if your intention were to demolish it adds but you would concede they would have an irreparable harm prong your honor there's absolutely no evidence that the city of new orleans intends or will tear these things down through simply never the legal position you're arguing is one that would best you with authority to tear them down as well as relocate them we certainly that certainly falls within the authority of  city i do think there's an important distinction to be made between damage to a monument and the irreparable harm to the opponents themselves to the turn of the statues are plaintiffs in this case the eight hundred seventy four monument and beyond the irony of it maybe arguably being the most offensive yet least easy to relocate is there no tension between the fact that you're claiming they've got no federal cl and the fact that it is because of a federal court that that one has more permanents your honor there may be some irony to the fact that that is the most difficult one to remove nevertheless the liberty place is really not before this side that are not going to be demolished no ma'am your honor we have told the district court that we will not move forward unless and until we get the blessing from the district court this is a three monument peel absolutely your honor  have even a remote chance of success at trial in regard monument do they have a land ownership because the land was donated to the beauregard the land was actually donated to the beauregard monument or they do not your honor and explain that there is no evidence in the record that be apart from the bald assertions of the plaintiffs that the land that is city park was donated reason city of new orleans versus the state of louisiana that recognizes that city park is and always has been property of the city of new orleans city streets are and always have been property of the city of new orleans that's  is firmly entrenched under louisiana law that a public body does not have the power to donate a public thing to a private apartment that would be a you have to litigate whether they were acting alt virus or something but i'm but my question is is is is it in the record that to ninety are you ninety eight three three three zero zero or that it was donated those do not call it that i do not believe that constitutes a valid evidence of a donation in your honor the if you look at the ordinance the a donation under louisiana law has to be accomplished by an authentic act which requires a notary in two witnesses argument can terminations on that he absolutely and i can i can't if they claim that that was not a valid donation i think he specifically recognized the appellants have failed to offer evidence of a valid donation under law we see in a law moreover there is a this is not a factual question your honor there is a legal constitutional probe prohibition against the donation of public property at this time it would have been article fifty seven of the constitution of eight hundred seventy nine and currently codified at article seven section twenty one a of the louisiana constitution let me things like that would have to be litigated your honor and we respectfully disagree and i understand your point i disagree with that i think these are our square foot well i think that a city does not have the power to do what is constitutionally prohibited and so there is no evidence in the record that the boat regard monumental absolutely not it is not a federal issue that is for this deck that the city to decide so whether or not the court agrees or not you know we were not to enter into whether robert e lee actually a board slavery and is not it with its name in this is a slight to him that is not and that is not an issue for this federal court today is it i could not have said it better your honor this is not a referendum on the wisdom of the city council's policy it is a discussion of whether the city has the power to regulate its own things and that principle was firmly established in singleman the more some which is the case that we think this is very clear we are clean for us their argument for substantial legal claim turns on twenty two ninety seven that's what they argue below that's what they've argued here but it isn't a frequently litigated civil law doctrine do you have any authority that it doesn't apply at all to protect public assets well that the there is no case that has ever ever extended negotiation just the oh the reimbursement claim that negotiator and just you know creates t ownership of public immovable so no i don't have a case that says this can't happen because i i think this is it's unprecedented that someone would even make that argument let me sort of distinguish the kilpatrick case which mr jones cited as evidence of kind of their proposition here is not that is a case that ultimately conclude decided not to apply negotiation just you know but it was about whether sort of attorneys had a claim against errors a will that they probated it was it had nothing to do with claiming or seizing an ownership in a movable property there is simply no basis to extend that doctrine here and doing so w violate these squarely settled prohibition against a seizure of public assets in satisfaction of a claim and that is article twelve section ten c of the louisiana constitution when the public public body in louisiana owes you money you file a claim you prove your damages and then you go on a list and hope that that body appropriates funds sufficient to satisfy your claim you don't get to on the phone and sort of show up say i have a claim by the way i donated these services i'm now going to convert those two to an obligation and pick and choose the pieces of public property that you like the best and that you think are sufficient to secure your claim none of the industry of a property right exist in this case if we were to accept opposing counsel's invitation to put aside the twenty two some ninety seven argument and look for some other property theory speculating that maybe there are bits and pieces in the record that show continuity of ownership from an original donation if we were to accept the invitation that we don't stick with the argument he's made here and therefore we were to contemplate that there may be some provable property interest moving on was a political process not given even if you assume a property interests it absolutely your honor a depth the constitution either the the fifth nor the fourteenth amendment prohibit a government from depriving a citizen of property rights it merely requires due process and in most cases where you have a lot of general applicability due process is satisfied by the legislative process itself here since they claim a property interest judge barbier specifically found that there was ample process and appellants have not even challenge that finding on appeal they haven't briefed it they haven't discussed it there were five meetings before for public bodies to before the city council in compassing six hours of pulp public comment it is stipulated that the appellant's attended these meetings they participated meaningfully and they made written submissions to these bodies which appear in the record so even if even if you're willing to follow them down the rabbit hole and sort of break new ground in the easy in a property law there is no basis to assa that there was or is that the city's legal argument is consistent and it would apply to any monument so the holocaust monument the monument to a p turo if you went through this political process your position is the city could then remove demolish reinterpret whatever one does with public art absolutely your honor that that is the crux of single movie morrison which appellants down regardless if there are people who who don't remember their history are doomed to repeat it or not that's that's the city's philosophical decision to make absolutely and i recognize there are strong feelings on both sides but the pleasant grove city utah case that the supreme court decided really makes this princip way the monuments are a form of public speech they are government speech and if we have the right to speak we have the right to stop speaking and to remove them on stat is through the prerogative of the government it is within our power monuments to them when you take them down if you take them down when they go to the current plan your honor and i'm glad you mention this because i want to bring it back to a question that you opened with that there's been changed circumstances stipulations the statement from the mary said city council members there is no desire to destroy these things to tear them down they are going to be removed and put into a city owned storage facility until an ultimate determination can be made about sort of the appropriate place to remember them and how to sort of recognise them in the appropriate historical context now with regard to whether circumstances have changed barbara's we submitted an affidavit from or in chambers our removal contractor who sort of testified that the city intended to hire a reputable skilled contractor to remove the monuments because the only evidence that appellant's ever put in and about irreparable harm is not that monument removal can't be accomplished safely it's that monument removal is unsafe when someone who is unskilled doesn't and that is true of heart surgery flying an airplane virtually anything that requires skill evidence because there's a knowable part to it about the center of the monument that no matter who did it there's a risk the very i'm wrong i respectfully disagree your honor that the we stipulated of proffered testimony that the parties would offer i believe to be in the record twenty one sixty four and that's when the document begins but but warren excuse me laurence roby show is there rigging expert offered no testimony whatsoever as to what might happen or the risk of harm if a skilled contractor w now certainly that they articulated the factors associated with monuments that make removal a an uncertain proposition and a difficult proposition but there is no evidence that an unskilled contractor will cause harm the day before the preliminary injunction r the on the day of the hearing we were very upfront that we had lost our contract or that they had backed out because he and his family received death threats which puts us in a very difficult situation  ever had a contract well those were in subsequent newspaper reports those record that's not in the record so there are subsequent newspaper reports after the general contractor dropped on the project his people threaten to kill his family and they're you know there were reports of torture genies all of a sudden it is not exactly shocking that parties would seek to distance themselves from this project and so that you know that they will go well well we don't you know we we we were really retained we were we we were involved in these issues were put so so maybe it would have been inaccurate for me to say that they're not the record because the issues of all crimes were put squarely to judge barbie in the request to stay pending appeal which begins at twenty three eleven at the record and they said look all cra not participating judge bar b a said my opinion was not based on the participation of one particular contract and that's a twenty six twenty three sixty six to sixty seven of the record it was based on the totality of the four factors that i weighed in particular your failure to prove an irreparable harm that is likely and the absence of any viable question further there is a significant interest that hasn't the injury to the city and to its people is the denial of the democratic process which this court has recognized and that's not merely with that but i have i'm sorry i've got one more question actually i'm sorry ron did it normally though even if if simple interest even if it wasn't quite to the level of winning necessarily and but the irreparable harm what's so great and it was just a short time period you know if somebody is going to have their be kicked out of their house normally the thing is you wait till the end of the proceeding that's just normally what courts do why should we wait at assuming argue window that there is even a  argument why should we wait a month or two to because it's you can't really it's hard to move these giant things back and forth and it's the same kind of thing of throwing someone out of their home stat or whatever you know those sorts of it we deal with those injunctive really questions a couple a couple responses to our number one respectfully they have not proven even a colorable right i mean i state assume that they had got one marble on the scale number one the kind of continuance and well i think the best answer is what i was about to say which is that while the harm to them compared to some of the harms that this court has dealt with in cases where it has does not and dissolved preliminary injunction inability to see a monument for a short time or a long time about seeing the monument only talking about destruction of the monument and understood your honor but i do think that there is an important distinction between destruction of a monument the monuments are not the litigants here the injuries sustained by appellants is the inability to view a work of art with which they identify so that i think there is a distinction to be drawn nevertheless i think the countervailing public interest in this case is particularly important in this case what's the best case for that for that case there to marilyn the king this court's opinion planned parenthood the abbot and that democratic that harms the democratic process just in closing isn't isn't just an academic which would sort of plaintiffs dismiss it casually when when sort of folks are denying to the democratic process they seek other remedies and put the city in a difficult situation and there was an express or at least an implied factual finding by the city council that these monuments represent a risk to property for people and property and a risk of violent demonstration and we've seen and so there is not on them a heck you can't give a heckler's veto because other people might do bad acts that destroy things is not and interests that w for a heckler's veto that is not appropriate your honor doctors when the demick when that sort of political process is frustrated that it puts the city in a difficult situation where it has to deal with the consequences of people who feel disenfranchised i understand your concern about the heckler's veto nonetheless the city is the party that has to deal with it that has to hire the cops to go out and protect the monuments so respectfully your honor we we affirm the denial of the preliminary injunction and in closing i would just note that there is a stay in place and you know we remain under that so i don't know whether it's appropriate for the court to revisit the granting of that but we would of course ask for any expedited consideration of the court would be willing to thank you abandoned for an adequate briefing under federal appellate procedure twenty eight a judge i guess and cut right to the heart of this argument that rule specifies that adequate briefing must contain contentions in the reasons for them along with no citation any precedent there's no citation any pertinent legal authorities nor do they explain and i think this is an important point how a good faith extension of the law would be required in order to accommodate their claims they admit their claims are not controlled by work with regard to the national historic register does that not does that mean not mean that the federal government has some sort of protective interests or not at all it does not the inclusion on the national registry of historic properties is important ephedrine money is going to be used on an undertaking that might have some adverse effect on property that is on the register or perhaps even just eligible for inclusion on the register that's only a federal money is being used on an undertaking that might impact the property in some way private property can be on the national register of historic properties doesn't mean the government's coming in and  i'm not aware of any independent of state law property rights spring from state law and not from federal statutory inactions not like the national register and there's not some provision where federal taxpayer dollars are involved that that the federal government ever comes in and says don't destroy this because it's on the federal register it is not federally owned property your honor you have any insight into the at the eight hundred seventy four moneyman that sort of put aside the liberty place but i do have insight into it but i would agree with  erasure point it's now before the court right now judge barbara in his opinion it's towards the end of a pretty lengthy opinion but he notes that the liberty place monument requires further litigation concerning that consent decree from one thousand nine hundred two the city's agree that it's not going to touch liberty monument absent some court blessing of its intent to move forward so at this point right now judge higginson further litigation is rick wired on the liberty monument it's still pending in district court the counter claim has been filed but issue really hasn't even been joined there we have a pending motion to drop the two other federal agencies that were involved in a consent decree it's not the two i'm representing here today it's actually the advisory council on historic preservation and hud but those two a decision up for the quarter and now we're just dealing with the three month point judge already made at the beginning this is a twelve ninety two and a lock to tory appeal we have no final judgments under twelve ninety one so further litigation is required in district court irrespective of what this court does on the poem unary injunction matter of fact we have a dispositive motion right now rule fifty six highlight them in my remaining time first the district court correctly concluded that three of the six projects identified occurrence complaint received no federal funding whatsoever therefore there was no trigger for sexual want to sixty four of studies to occur secondly for one pass transportation project that did receive federal funding the loyal avenue streetcar line that funding concluded in two thousand and eleven the section one of six and four of studies were published in two thousand and eleven and importantly that triggers a six month jurisdictional statute of limitations to file any claims for judicial review over those findings appellant missed that deadline by couple years those are my i remember from your brief factual argues you do you perceive there to be any claim before us that there there is a reversible error in that the district investigation into any issue that the argument here is there was a failure to allow inquiry into the facts you're describing or any other facts is that issue before it's based appellant certainly did not request from the district court is to continue the plumber injunction hearing to allow for additional discovery they were right and ready to go from day one and they did not claim to the district court you need to put off a policeman ery injunction but until we have an opportunity to conduct for the last question i have back on eight hundred seventy four because to me that's the only one that's got sort of wrinkles and i know it's carpal if i remember mr logan below implied that that consent decree could be interpreted to apply to other monuments again that argument not here in front of us they made that argument below judge barbara emphatically rejected that argument the briefing on that i did not i do not recall that that was adequately briefed either but that argument would apply probably more so to the city than to us and assume our time is up and i can make one remaining point everyone else is go absolutely no factual no legal or no causal nexus to the removal or persistence of the monuments at issue before the court rather it was action of the new orleans city council december twenty fifth that's the undisputed causative agent that has the was was properly found that under say barton creek and piedmont that there were no environmental findings that would have withheld those projects moving forward and one secondly that there was no segmentation or inappropriate segmentation from the entire street called network those three projects ever see federal funding finally that the difficult was proper as the f d a and the r t a have have informed this court in its briefs that there was no nexus between the federally funded projects and the proposed removal of the monuments the reach of transit authority but also want to emphasize that it is critical to note that the appellants have essentially abandoned their arguments as it relates to the issue of the of the fonzie that are the finding of those of most significant impact that was made in these cases there was a declaration made by laura wallace constitutes a waiver that argument with regard to any briefs that fail to cite any proper authority in support of that and that also constitutes a waiver with regard to any other issues involving second taishan involving one whether the system has a logical term and i secondly whether there is substantial infinity till a day thirdly whether or not there the project does not foreclose the opportunity to consider all other alternatives and for whether or not the project is not in a manner that prevents the committing of federal funds for closer related projects district court probably found that there are at ca and that the if there was no improper segmentation of this matter that each project was independent and stood on its own but there is no nexus between the monuments and the placement of those minu cases and so they were respectful maintains that in those cases the same situation exists whereby each in each street car project was separate and distinct and has no relationship whatsoever with regard to the place skepticism and some doubt about some of the claims some of the standing or property or property interests if any of the claims can be dinged can meet that standard even if the others do not an now trying to that the city and the federal defense are now trying to withdraw from i just mention that because that is one of the claims that i think has absolutely been been been shown where is that in your brief just where you want to say something about that that the only issue the judge bobbie i decided was that you would deny the injunction he did not rule on the merits and we have not fully briefed the merits about in h p a d o t i'm asking you whether you brief that you have a substantial legal claim where did you articulate this latest assertion of a legal claim in your brief to us that there could be spillover it was mentioned below i have i believe it i  can't quote i can't but that i believe we have made this argument time and again throughout this litigation we have said that the liberty monument is an anchor that keeps all of these monuments in place but we mention on in the context of the fact that is not the owner of the mine the city is not the owner of the land we have made this claim throughout this litigation and the city can and has alienated public things and in particular are written not owner even if owner alienated is that that's the two parties on what's secure claiming that the record establishes and the argument before says that the city never own or that it did own and then alienate never own it never own the money as they would the land was donated and they were paid for by public subscription that is in the record on appeal the city has no plan and no idea how it's going to take them  plan to take them down the city has no contract in place the city has no no knows timeline but if the court does not let the case remain in place if this court doesn't preserve work this is going into this case will be thrown out the window if if the coach doesn't let those those monuments were made in place there's no harm whatsoever to the city to let them rest in peace for the next year while we bring this litigation to