wade and mr smith based on a substantiation requirement found nowhere in the four corners of the injunction this case can be resolved by looking at two things the language of the two thousand and eight injunction on which the district court based its contempt finding and the court's decision last year in lab m d as this court recognized in vacating the prior contempt order it said quote the injunction did not mention any requirement to reduce clinical trials to substantiate weight loss representation and as a disappointing have to see were forced to recognize nothing in the four corners of the injunction limited competent and reliable scientific evidence to randomized double blinded placebo controlled clinical trials of the  required to validate drug claims here here's the problem that i have it seems like you all may have waived this issue and the reason that i say that is because it wasn't brought up specifically when the  the injunction was issued at that time whether there were any objections to anything that was not brought up then you all appealed and we affirmed and to and it wasn't raised in the appellate brief either i mean maybe you did obviously challenge vagueness under the st amendment of the terms but we affirmed anyway so even if we wanted to construe that as applying to your current position we affirmed so i'm not sure i'm not sure how we get to it is what i'm trying to say maybe you could help me with that i understand st as a matter of black letter law under this court's case  law the f c c has to put on clear and convincing proof that the order was valid unlawful and that the order was clear definite and unambiguous that is always part of an evaluation of whether contempt sanction can be administered nd with respect to waiver we think would be manifestly unfair to hold that this court can't or shouldn't review the injunctions enforceability or the contempt order here because in two thousand and eight defendants weren't able to predict that over a decade later the f t c would read into the injunction a new  far more stringent requirement well except that your attorneys did write i mean your attorney specifically said nothing less than the double blind test will suffice and i mean the way i'm reading the record it looks like perhaps that that particular opinion wasn't really appreciated and so the attorney was fired i mean it seems like you all knew this and went ahead and a question of subjective understanding i'm certainly happy to address that st that's not part of the increase in increase whether it's an objective whether a reasonable person would understand what the injunction acquires and that's measured by the four corners of the injunction itself with respect to the factual question you had about the understanding of the parties i think that that ignores the larger context of the communications where you see a back and forth that particular memo i think was a snapshot from the beginning of the process and not one that specific percentages like the claims that were tissue in the st motion for summary judgment where there were specific percentages of weight that they said that you could accomplish their measurable goals and he said you know in the past nobody's had a problem with saying rapid weight loss and i think given that i think there's what it shows is an attempt to try and figure out what the standard actually was and in order to impose a contempt sanction particularly contempt sanction of forty million dollars you have to be able to understand what the injunction actually requires and this court itself said in the last round when it vacated the injunction before that it didn't mention any requirement to produce clinical trials to substantiate weight loss representations particularly ones here both of the witnesses on which the certainly not required in the text of the actual injunction the injunction itself talks about compton and reliable scientific evidence in the district court's order granting summary judgment well before it talked about the fact that depending on the claim you have a very different requirement and here in fact there were randomized clinical trials the government took issue with the experts that the defense put on but that ignores the fact st that the government bears the burden of proving contempt by clear and convincing that they didn't do here it also ignores the fact that we had six experts who testified from a range of different backgrounds the government didn't oppose them as experts they didn't say that they weren't qualified to weigh in and in fact our clients relied one hundred different studies and if you look at the language of the f t c as guidance the f t c zone guidance specifically says that there's no fixed formula for the number of type or type of studies required that results obtained in animal and in vitro studies and research explaining the biological mechanism underlying the claimed effect may be enough and that studies on the precise formula used in the advertised product are not required there were tests here on the key ingredients and indeed the advertisements and the labels themselves so that there weren't product specific clinical trials that have been done that the studies have been done based on the key ingredients i take you back to the waiver argument for a moment cause i'm still i stuff concerns about that it seems to me that  even though in order to enforce the injunction and there has to be we have to go and take a look at the injunction and make sure that it is valid in this case when you're attacking the validity of the injunction it's seems to me like what you're really doing is saying that the injunction is not clear enough under rule sixty five dollars d would you agree with that we are making arguing that it is not clear enough that there is an indeterminate standard that's precisely what this court said can't stand under lab mt the fact that it is unclear i think only became evident over the fact that we had a two week hearing with computing experts trying to debate not whether the standard was met but what that standard was in the very st place that cannot sustain a contempt finding the whole point of contempt is that the government is going the benefit of fewer due process protections for the defendants and so that is why rule sixty five dollars requires in this instance that it be clear and unambiguous and the court this court has repeatedly held that in order to find contempt that the government has to prove by clear and convincing evidence that the allegedly violated order was valid unlawful and that the order was clear definite them big us and they simply didn't do that here what led them to teaches us is that and indeterminable standard is no standard at all here the government's own experts couldn't agree on what the standard was but in in our i'm sorry but in the case that you're relying on the appeal in this case i thought that the reason that we sent it back was because the because the district court had misapplied the doctrine of collateral estoppel that i mean because basically what we said was this case involves different representations different products and the interpretation of a different legal standard right isn't that we sat that is ok so again i'm still a little confused as to how you all didn't wave this well we raised the issue in the st appeal from the contempt order initial contempt order and in of the court specifically said as you quote that there was a different interpretation of a different legal standard so i think we have raised it we are entitled to continue to challenge it because it provides a basis for the contempt order here and if you look i think of the court's language also have simply said that it was premature to judge the four corners good morning morning your honour's may it please the court there's another reason in this case for dismissing this case against my client stephen smith the f t c did not indeed could not prove by clear and convincing evidence that my client had the ability to comply with this injunction that is something that this court case law required it to do my client was not a shareholder of high tack he's an independent contractor with no power to modify the advertising or labels policy yet he now has a forty million dollars judgment hanging over his head and he spent seventy days in jail under an order which this court later vacated at the very best the evidence showed that for some time mr smith controlled day to day operations that high tech controlling day to day operations is not the same thing as having the power to modify advertising policy if i bring a babysitter and for the weekend that babysitter is running the day to day operations of my household she does not have the power to call a realtor and put a for sale sign in the front yard that is not what running day to day operations mean for that reason and that reason alone this court should bake a the order against mr smith he never had the power to modify the advertising and the f t c did not prove that he did thank you morning may please the court jack metzler for the federal trade commission the injunction in this case will be a high tech from saying that its products cause rapid that loss rapid weight loss  increased metabolism and and suppressed appetite unless they had competent and reliable scientific evidence that showed that their products actually do those things the fact  was they didn't have the science but they made the claims anyway the court should affirm the district court's decision holding high tech mr we in mr smith in contempt because st of all the injunction was clear on its face they claim that they're making a as applied challenge but regardless of that they did not mention it when given the opportunity before the district court when the injunction was being entered and on direct appeal from that injunction is is whether the defendants actually understood it and here they clearly did their contemporaneous communications talk about the claims they say we can't make this claim unless we have a double blind p controlled it separate study and then and then as judge rosen points out the they had advice from their attorneys who wrote a detailed memo saying look if you make these claims if you say that aston causes rapid weight loss if you say that it causes that it will cause rapid fat loss and increases metabolism those are the exact things that are in the injunction and the judge is very likely to hold you in contempt so it's no surprise  that they were in fact held in contempt and and again no surprise that they never brought this up on direct appeal because they knew what was what was happening with regard to the actual evidence that they put on it consisted of two things they had a centrally animal studies in vitro studies and they had some controlled clinical trials on different products containing different ingredients that they didn't even measure things like fat loss and and weight loss so the district court was clearly within its discretion to find that that those studies did not substantiate keep the argument on the other side is that you know an ordinary person would know what it means to you know have quote competent and reliable scientific evidence and that the during during the trial there were experts on either side that debated what that meant and so i mean sure where we go with that so the judge here believes both trials but that doesn't and you know the they're right that those words don't appear in the injunction but that's just sort of a shorthand for saying for this kind of claim that's the kind of evidence you're going to need if they had a different sort of claim you know for example let's say that they had in an animal study and they represented the results of that animal study you know accurately and truthfully and said that this doesn't necessarily mean that the same thing's going to happen in humans well you wouldn't need a randomized controlled clinical trial on humans to show that that was true what you need is that study right so so the standard that is in the injunction is is  one that needs to be clear so that people can understand but it also needs to be brought in off to encompass the different claims that they're going to make here they they understood that what they were going to need for these claims was clinical trials and they knew that because these are the very same sorts of claims that they made on their other products and in fact the court found that one of the reasons they needed an injunction was because of the claims they were starting to make with fast and which is one of the products in this case that was not in the earlier in forcemeat case so so i think that you know the fact that they actually did understand goes to whether a reasonable person would understand  injunction so so he is in joint personally from making these representations in the connection with the sale of any products as as he said as my friend said he ran the company from day to day so did did he have the ability to not participate in this absolutely he didn't have to work there he didn't have to take that job but what he actually did was he placed these very advertisements  one that he is the one who is arranging for them to be placed in magazines and as you have seen from the contemporaneous communications he was communicating with mister with mr we while he was in jail about these exact  about these exact representations and he was saying look the lawyers have a problem with them you know i'm not sure at any point he could have just you know not said i'm out i'm not going to do this  anymore because i am in joint for making these representations he also admits in his brief that he was a sales person so he was bringing these products to retailers and saying i would like you to sell these products while he was bringing the products with the on the packaging in light of the advertisements that he was placing so i don't think there's really any way to argue that he wasn't directly in violation of the of the injunction against him well as for the company well you know running day to day operations you know that is kind of like control and if if the day to day operations in my friend's house includes you know something illegal the babysitter sh probably say i'm not going to do that anymore i'm going to not do this babysitting job because you're doing things that are illegal and i think that's it for mr snip any question thank there's no case has ever held that competent and reliable scientific evidence requires a product specific r c t every court that other than judge the disc or in this case has rejected that in bayer in basic research and garden of life and indeed the government's own expert agreed that no company in the industry could satisfy the standard that was rewritten into the injunction the error here was that the district court rewrote the injunction to require something  in the four corners of the injunction do you agree or disagree that even where there is a vegan junction if it can be demonstrated that the parties understood what it meant then that's good enough  is that art is that the president i do disagree with that i don't think that that is correct if you look at the cases for example that the government cited in support of its claim that subjective understanding alone can be enough for example those look at the language of the of the injunction they look at they don't look beyond it to evidence and we think that moreover as a factual matter looking at the evidence it doesn't support that if you look for example at the memo that they discussed those were attorneys who were not advertising ex actually said that this should be reviewed with an advertising attorney and in fact the ads were reviewed with an advertising attorney there was an attempt to make sure that they understood what the standard was without being able to know what it ultimately would be and that's the fundamental problem here is that the standard w only defined at the actual contempt hearing if the government wanted to ask for an injunction that would incorporate a requirement of r c t s they know how to do that they have done that in other cases they could ask for a modification here that clarified going forward what the obligations are but what they can't do is seek contempt based on past conduct based on a requirement that's found nowhere in the four corners of the injunction the supreme court in fact didn't point to some language from but the problem is you can't then shift the burden to the defendants in this case to predict what would ultimately be required and the requirement that the district court settle on that it looked at to exclude all other evidence aside from the r c t s which did exist there were r c t s for the key ingredients here was to say that the only way to satisfy that were different from r c t for for the product as a whole i mean different ingredients can interact in different ways and then there are facts under the r c t s for the individual ingredients may not really hold too much water anymore once they're combined with other other components i mean when you agree i would agree but when you look at what the government's expert dr ron testified to he said  way he didn't know of any reason why in this case there would be antagonistic effects and if you look also at the testimony of the defendant's experts and again the burden still remains with the f t c to show contempt they specifically said that there was no reason based on these ingredients to think that there was any antagonistic effect and that the other ingredients in the different products were there in sort of minuscule amounts so i think given all of those facts it's worthwhile to remember what the supreme court said when it said the judicial contempt power is a potent weapon and one is founded on the to create too big to be understood it can be a deadly eleven of the things that the government must prove by clear and convincing evidence is that we violated a specific command and that specific command is in the honor's with all due respect to counsel for the f t c it is not the law in this circuit in any circuit of which i am aware that being an employee of a company that is in violation of an injunction  violation of the injunction was in there more here i mean not only was he in joined the st time but also he was in his position as vice president in charge of sales and the head of the food drug and division there and didn't he as his responsibilities have advertising and promoting high tech products at trade shows i mean wasn't he yes he did all of those things your honor but he did not have the power or the authority to modify the advertising only gerrard had it ok then i mean it's his art i mean he's not really arguing that it would be ok for him to knowingly sell products in violation and advertise products in violation  court to do is to say that unless my client quit his job quit working in the dietary supplement industry give up his livelihood why would he have to quit working in the dietary he can't make stree he cannot he cannot make claims unsubstantiated claims about any product and as dr roan testified below no dietary supplement company has ever done to r c t s on a on a product it just hasn't been done  can't sell any of them and the government asked the district court to ban my client from the dietary supplement industry and the district court refused now after having waived the argument because it did not appeal from that decision it now attempts to bypass its own waiver of the issue and asked this court to do defacto what the district court refused to do the jury for that reason this order should be vacated against my client thank you