thousand and ten consolidated appropriations act what it was doing was giving dealers who had been terminated in the g m and chrysler bankruptcy as a chance giving them a chance to be added to the dealer network wasn't giving them a guarantee predecessor had terminated the district court's analysis effectively deprives them of that chance because it disregards the text and structure of section seven forty seven  thereby reaching an erroneous conclusion as to what the remedy is under the statute and as a result of that constricted view of the remedy it failed in its preemption analysis to recognize that application of state dealer laws do the franchise laws  frustrates congress's purpose and thereby those state laws are preemptive i want to just focus on this remedy issue because i think it's really the key to where the district court's analysis erred in this case and it's important to construe to look at the statute in its entirety it's not a lengthy statute until the court has read it subsection d is really the substantive heart of the statute and it lays forth what congress was intending to provide dealers who prevailed at arbitration it's the fourth three different economic interests that the arbitrator has to consider those of the covered manufacturer those of the cover dealer and those are the public at large laid out various factors that the arbitrator was to consider among others and then it specified the arbitrator quote shall decide based on that balancing whether or not to cover dealerships should be added to the dealer network of the covered manufacture that's the heart of this statute interest of the cover manufacturer and the economic interest of the public at large and shall decide based on that balancing whether or not the cover dealership should be added to the dealer network of the covered manufacturer and i have the shelby added language  shell as soon as practicable after the arbitrator's determination which is what you referenced in the provide the dealer with a customary unusual letter of intent to enter into a sales service agreement i mean to enter indicates something in the future is going going to happen as opposed to the arbitrator's decision is final district court of new mexico case from two thousand and eleven exactly reconcile that it said the substantive remedy is subsection d's being added to the dealer network and subsection e s letter of intent is merely the means by which it gets carried out it's the means by which that remedy gets effectuated well i mean if it's if it's to enter into an agreement obviously they haven't become part of the network and there's there's something due to work out that's all that doesn't seem like it's final the arbitrator decisions final it's something else has to come to an agreement between the manufacturer and the and the dealer well you're right it's not the final step judge griffin but there's really no dispute in this case that once a letter of intent is issued and the dealer signs it is mr tang min testified absolutely that leads to a sales and service agreement now the problem here is that the absolutely is qualified if you allow state dealer franchise laws to step in and give the competing dealers a say or an objection to that do they have a veto though i would call it a qualified veto your honor what it what they have is the ability to force the dealer to enter into a second parallel really repeat litigation of what the arbitrator decided you want moving pardon me you're moving into the preemption argument now so i think you're confusing arguments here i just want to be clear i know that they're related but i want to be clear as to you that's the question which i gather is taking you into the preemption u are entitled to a letter or a letter of intent that is usual and customary not that the remedy at at the end of the arbitration is reinstate  remedy the letter of intent is the means by which the remedy is inforced because the crack dealers have a mechanism by which when they want when a dealer has met its criteria for obtaining a dealership a letter of intent is issued we will we intend to enter into a sales and service agreement with you provided you meet these conditions and they contain things like square footage and signage and lots of different things what if they can't agree on the will and the conditions in the letter of intent i mean your first argument is they're automatically reinstated by the arbitrator's decision well the letter of intent assumes that there are terms and conditions that have to be to go shoot it well in the case of my three dealers judge it's undisputed that they can meet all those conditions and in fact one of them jim marshall scientists a lot of the legal issue is whether it's done at the time of the arbitration or whether the remedy is the letter of intent and there is further negotiations going on correct in our view of the statute the statute is simply congress's reasonable means of telling the parties in subsection e once you've arbitrated the arbitrator has decided and by the way the arbitrator in each of these three instances use that language they shall be added to the dealer counsel i want to assume i know you're out of time and maybe your co counsel will raise this and i can ask that counsel but i'm curious about assuming that the letter of intent is the remedy which is not your position you still have a preemption argument is that correct we do you say that related if you lose the one you lose the other lose one you still can win on the other we do your honor we maintain that regardless in situation specific situation of my three dealers  what the l a why should not be allowed to undermine the results of the arbitration and that's my argument is i should not is that it's hard not like a public policy argument i mean if that if that's the decision the judgement of condors we enforce it whether it should be or not shouldn't the arbitration was final without appeal in my case in my case i've given you in my brief for findings that were made in arbitration that made my arbitration specific to my client site so when my client went to arbitration my client continued to own the site that was terminated my clients in the courtroom still owns the site there's a finding in the arbitration that the my client should be returned to that site and i've given you the quotes claimants economic interests are met by being able to utilize its land and built building which are presently dormant this is the finding of the arbitrator and to reestablish its business there in a strategic the first three paragraphs that's in what they say is the usual and customary alawite that say we get to decide if your site is correct arbitrated and one my site and here here's the issue on that is that  what they're essentially getting there's a right to appeal the arbitration which is not their right on the issue of preemption i believe it's conflict preemption that i've argued in my brief the if you take what was  arbitrated at the federal level and you take what michigan has as a as a deal or challenge in there a letter of intent they indicate in the letter of intent by the way we're going to throw this out there and allow other people to challenge you that gives a second bite at the same factors it's the same factors that were already arbitrate a federal statute doesn't consider the interests of the other dealers does it if you take a look at the parallel that i presented in my grief when you compare the state dealer act in michigan to the seven forty seven criteria of arbitration you'll find that five are nearly identical and two aren't very far away from being identical ok that answer is question that's that's a big difference i mean the federal statute considers that does not include the interests of the other dealers that it includes the actual going does includes the economic interests of the community as a whole that's then the business interests of the other dealers the right not necessarily not necessarily ok so it is a different interest yeah but it doesn't necessarily defeat your conflict preemption argument i don't think it does congress i think decided what interests should be considered and lists them michigan decides what interest should be considered and lists them but if the two conflict if one can't the federal statute can't proceed with the michigan statute there may have conflict conflict preemption but i mean michigan evaluates the public policy a little differently than the federal government itself akin to that if we stay with the concept binding that you know why delivers the remedy and the remedy is to be added into the dealer network in your prior geographical area with your brands that you have that's what the law says it's possible judge that in that geographical area there is no location that will not be subject to a state challenge where again you are forced to prove why you should be there so it's complete caught out but you talk about conflict it's normally my understanding which is fuzzy is that in conflict preemption the parties can't one statute says do one thing in the other statute says do another thing and you can't do both things well here but here arguably have to meet these six standards under the federal statute and you have to meet these some standards of their same and some that are additional under the state's statute and you have to meet all of them in order to be compliant with both the state and federal law you could say briefs says that there they not only can but they will in their ear to do so your honor in my in my case i want to make sure that i'm expressing right i'm asking you to do is i simply want an elo why as you've defined as the mechanism to deliver the relief that frees me from chrysler's discretion to not approve my site that old with a ruling coupled with a ruling on preemption and that's all my client needs to give you're not arguing that there should that that that that we should rule that there is no proceeding under the state statutes that should proceed for you are you are arguing that because that's what chrysler originally brought this claim isn't a cleric or a judgment to see whether they had to you know provide notice to these procedures and participate in these procedures or whether they can just say these procedures are no longer applicable i'm are you're saying that they're just totally not applicable that's correct given it's a little bit different from what you just said no given this federal scheme that's not writing something into the l a line that's having this court say those procedures are off the board i mean asking for who would matter what was in the yellow eye if that were the case preemption argument i want that template as my site and then i want to ruling that because i prevailed in arbitration under this federal law that when i get reinserted back to my location i should be free of state law challenges that's the argument i'm trying to conflict on that that seems to be a lot of slippage to the other arguments which is understandable but on that argument that's conflict preemption i'm having trouble seeing that that's conflict preemption without slipping into your other argument state law is an obstacle to the implementation of the federal resolved is that is that is that field preemption has congress preempted the field by comprehensively moving in and regulating this field no i do not think so judge i think i think in this case congress took a certain body of people who were going to have certain rights and it was going to result in them being reinstated back to their dealerships and the state law should not of fact that he made following the bench trial normally we were view findings of fact under a clearly erroneous standard and judge judge cox found that those that the letter of intent issued to your client was usual and customary why should we not review that ruling under a clearly erroneous standard even if you say that it should have ruled the other way that is your standard of review judge on the charlie white why is it clearly erroneous  right to go to my site tang and testified there's a template for that bella why that oh i would be the template preapproved site we do issue those we've issued m sixteen times and we negotiated with another folk other folks in the spitzer case and gave them a site specific oh i that's what i want because otherwise my arbitration award all the findings of my arbitration award that relate to my site are now at their discretion under their version of the i presented to the trial court here's a no i that i'll take it all it did was a limited those first three site selection criteria that's if that was the intent i'm sorry your she has no problem that's a little confusing we did the best we could i hope that was ok best we could to have each side have the same amount of time and have been in a logical progression but to be honest i could figure out a way that perfectly did it so i tried the best i could actually i think it makes sense my name is you got shocked i represent chrysler group in all three appeals as i understand the court's structure i'll be arguing now i will not be arguing in the one nine case which primarily focused on constitutionality which you didn't address for me we do not take a position unconstitutionality we have a constitutional or void and argument on reinstatement but we haven't taken a position on the pure constitutionally them i will address the four issues before you in which chrysler does take a position one is reinstatement the second is preemption the third is customary unusual the question that the issue was just question and the fourth is the exclusion of certain settlement agreements by judge cox with respect to his consideration of the customer unusual issue i want to start out by answering a question that came up in the appellants are going to but the relationship between the reinstatement and the preemption argument they are similar conceptually because they reflect the dealer's desire to get their old dealership back on the old terms one does it by saying the statutory interpretation allows them to be and reinstated as the quality district court called it status quo reinstated on the same terms if that happens they get their dealership back and they don't have to go through the customer unusual why it's the second argument is preemption which is really based on interpretation of the remedy o the statute it just says as a matter of federal preemption law there is no state protest process so we get right to the dealership so they are different analytically but they're trying to get to the same goals but it does i'm sorry i was well to unfold your argument all accords that address the reinstatement argument including the second circuit in the ninth circuit of founders reinstatement is not what's prescribed the line of questioning of appellate counsel i think answers the questions perfectly arbitrator does in fact make a decision whether or not the dealers b ad then what happens in subsection e as judge griffin pointed out is the statute says if the arbitrator's decision is he should be a then the manufacturer is to give the prevailing dealer a customer unusual oh i and you go through the customer unusual process this is my question isn't it as simple as the dealers are congress isn't in t was that once the arbitrator had made the decision that the letter of intent in shorthand for you get your dealership back that is there are arguments there are so that's where the preemption conflict because if it i shorthand for that in their state laws they keep that from happening then your income and and i think my answer the question therefore were dress both arguments clearly that is not the case a letter of intent in the automotive franchise business is a precursor requires contractual performance state protest and then there's a sales and service agreement at the end of the line in the prior legislation the congress considered in prior to seven forty seven dealing with the bankruptcies in the deal or concerns they did just that they said a dealer should get the sales and service agreement back or should be reinstated is old terms the law that was passed some forty seven use the term customary and usual and every court that has looked at it has said that language means what it means the arbitrator decides whether the  it could mean that and i'll jump ahead mr smith said did they just want to chance not an illusion well they do have a chance it is not an illusion even with respect to the state protest process many dealers won't have a facing dealer protest you have to be with us all state laws require you to be in a geographic area the protests there may be some dealers who don't have a facing dealer who will protest there may be other the prevailing dealers who have a facing dealer who could progress protests but doesn't there may be other dealers who have a facing dealer who protests but the protest is on the rampage an issue now you know so ok so move on to the preemption issue you were on it already i  brief the fox hills brief but there they say the purpose is to be unconditionally added without meddlesome interference from protesting dealers that's language in their briefs that's not what the statute says what the statute says is a prevailing dealer gets a customary unusual why the metaphor i like to use i think that explains it is there is a process by which dealers both prevailing dealers and dealers in the business community a  large apply for a dealership get an l y build the facilities do whatever they are requires go through the protest process and get a deal is absolutely clear from the language of seven forty seven that the inten congress was to put the prevailing dealers on the train at the l a y stage and the oh i stage priest seeds the state protests process understand that makes sense to me here's my concern i can if there's something about the process which allows them to kick you off the station off the train at their will the next stop that looks puzzling right it's got to be you've got to have some if it would be strange to read the scheme to allow that i understand that makes sense it does make you got to have some security that you're going to stay on the train not that under present you're going to stay on but you've got to have well there's two ways to get off our metaphorical train one is the protest process which per the questions is a result of state deal or was and i think congress clearly intended the prevailing dealers to go through that by selecting the remedy of the oh a why your question now more and less that protest process is sort of an automatic injection there's certainly no evidence in the record that it is ok there is and for all we're talking about fifty's when you're talking about the meaning of the federal legislation you're not just talking about michigan you're talking about all fifty states and there are protests process and all the states have adopted state legislation to protect the public to protect the dealers to regulate their motor automotive franchising in the way they see fit why different than michigan different than mississippi but they've all adopted some laws and the position the deals are taking is that all those states laws are preempted by some forty and all they have to argue is that these two are you can preempt something in something else by the same language right but i don't think they've drawn any distinction as to why they're preemption argument would not apply to all states laws the particular states in the ninth circuit in new mexico generally the specific issue hasn't i mean there hasn't been the preemption issue has not been addressed by any prior court let me now address the question you asked judge rogers about whether they can be kicked off the train sort of unilaterally the answer is the federal statute some forty seven requires chrysler group or also  to enter in to a customer unusual lot of intent we give them a customer usually or intent they sign it we have a contract we have a contract that we have to comply with so if the question is could g m or chrysler breach that contract i  suppose any party to a contract in breach of contract but to answer your question if that contract has terms in it which just more or less or lose three or make the contract in the loose three contract because it's just easy for once normally in there in a ring when a true one of these there isn't there is a mutual intent to go forward this is one that's being forced on you and the one that's being forced on you has a provision that allows you to easily or virtually at will to get out of it than you would then it would seem to be inconsistent with the scheme if and contract that has teeth the more teeth it has the more like it looks like it's in the scheme absolutely judge rogers i completely agree with you and i believe that's prevail you have to give them the same l y letter of intent you give to everybody else and and that's that's the beauty of how it was done and but in order for it practically to be the same  don't we have to watch out for provisions that would be not problematic among people who mutually enter into a contract but would be problematic if they're forced into the contract i don't think there are any such provisions here would be there were we could check for that and let me give you one example that wouldn't make sense for us to interpret customary and unusual to take into account the fact that this is a required that you're being required to enter into these allies i think not i think you're obligated to follow the federal statute and if you or judge cox concludes that per the language of the federal statute oh i was customer unusual away taken out of the system i mean that they have to have a contract chrysler in whatever deal or if this is not dispute congress is saying that that contract has to be customary and usual not necessarily reasonable not necessarily this or that but just whatever the practice is it's not not the practice of the industry but the practice of the manufacturer that he has to treat these these people have gone through arbitration in the equal manner that he treats the other dealers and whether it's reasonable or a loser or anything else i don't see is a consideration as long as it's customary and usual those those are the words and there's nothing else in the statute right and i think that's my answer to judge rogers that when he hypothesize something that in the context might work out unreasonable you're on for your only protection argument they've got to be treated equally with all the other they have to be treated equally which is why the second part of my arguments here in a minute we'll be focusing on did we give them a customary unusual letter of intent and that issue to go back to your question judge rogers that issue was addressed in all of the other decisions district court decisions on the second circuit in once or get opinions about customary and usual and the district courts which did the evaluating have all found that what chrysler provided a customary and usual letter of intent now there's nothing in the record to say that those letters of intent are exactly the same as here so it's not controlling in any way but this issue has addressed our main i may have to drag you into your final issue and you dress that you are preemption i certainly preemption the law is very clear there is no implied federal preemption unless the federal statute manifestly expresses the purpose to do so the two implied preemption listed expressly does that was a no no no no i mean the context has to be clear and manifest that it is the intent that it's not expressed perhaps it is prick spirit express preemption for employ implied preemption to find implied preemption this court has to be convinced that the intent to do so was clear and manifest from the statute we're not talking about field preemption we're talking about conflict preemption the two cases they cite and i think i can put the pure preemption issue to rest hopefully quickly arizona vs the united states involved immigration arizona adopting a statute that infringed on the long history of immigration regulation by the federal government hilman the miranda involved the state law all relating to probate and whether the wife or ex wife would of a federal employee would get insurance spend life insurance benefits another case where there had been a long history of federal regulation that a state law in impinged upon and the finding of the supreme court in both cases was that is preempt the because the federal government has had a long history of regulating the area we're talking about immigration or federal employee benefits here the situation is exactly the opposite the states have for decades seventy five years regulated automotive franchising as a matter of state law the federal government has never weighed into it and the net in the you're doing pure preemption pure preemption they've never done it until this statute till seventh but that's right ok they did get it but they did they they did weigh into it obviously had a lot of competing interests come to congress because they had a lot of versions of these bills one passed by the other one that passed by the senate they've got everybody complaining and arguing with interest ought to be considered and they finally come up with a comprehensive statute that does not include the michigan protests provisions which i assume that michigan dealers want in their i'm sorry not following that last question i'm assuming the michigan dealers were involved in lobbying congress as to the form of seven forty seven on the record but as well i mean everybody else was yes and they have lobbyists in washington like like other organizations and they didn't get their interest in the federal statute and say well it still exists even though they'll almost but but the issue is not whether seven forty seven does what it says it does namely set up arbitrations and do all the things that it says it does the question is does it go further and preempt state view or laws even though it doesn't say that it sets forth all the interests that that must be considered by the arbitrator to have a decision that the dealer should at least get back on the train for the network and what it does not include some of the interests that michigan thought were important with congress doesn't obviously think that they're important that's all that i see it i see a conflict there and to go back to this metaphor what congress intended to do by the express language was put the prevailing dealers back on the train at a station that was before the state protest laws they easily they easily could have accomplished avoiding the state protest laws by either saying federal statute exams protest laws these dealers they could say that or as a matter of implied preemption they could have said the dealer gets a sales and service agreement what it said which is contrary to fact type what if it's said in the stance the arbitrator shall consider everything that the local state deal or act would have considered but instead of saying that they you take out the word state dealer act and you just plug in the words from the state dealer act or even the i mean what if they had said that would that have been preemption i don't think so at all i think i actually used the words shall use the same factors that the state dealer racked up a clear difference no matter how similar you make the standard of decision is the protesting dealers were not a party to the arbitration and so am i as far as chrysler going to speak for mr deer dany and say here is what his and his facing dealer might have an interest the state protest laws express the state's interest in regulating automotive franchising and give facing dealers of voice in that process th congress intended to obviate or preempt those state dealer protest procedures there's nothing express the fact that the remedy called for is before the protest process in the normal process but the sequence of the statute the room that is after the arbitrator makes value weights all these interests and makes a decision that the dealer should get on the train and the next thing is the letter and after that is that there will be an agreement the statute presupposed another step and you've got to go back to the state agency as to the protest laws  it seems to me like that would be out of sequence of the step dancer question judge griffin the the statute is silent as the state protest process is one way or the other but the statute also talk about in a different section we have talked about in terms of who is authorized to file these arbitrations the statute talks about dealers who are not lawfully terminate under state law which was the language to basically say they got terminated in bankruptcy or rejected in the bankruptcy and so the prefatory language the talks about which dealers qualify reflects a knowledge of this state law protest process because it says any dealer who lost their has filed a brief defending the constitution ality of the statute and the michigan attorney general routinely does the same when michigan statutes are constitutionally challenged however i've also seen the attorney general intervene in cases where the michigan law law or the interests of the state of michigan are challenged and here the preemption argument would challenge an interest of the state of michigan has the attorney general taken any position in this case or is it significant that he hasn't i'm aware of is it significant that the attorney general has stayed on the sidelines here when the preemption issue would knock off he would knock out the michigan stat draw i draw no conclusions one way or the other about the attorney general's agenda i think we are interpret ng language in a federal statute in the intent of congress and it will be whether the attorney john would affect the interest of the state of michigan and my my experience with the current attorney general is that it's been a very active office that has been very involved effectively by the way but i thought it was agrees that the dealers are on the train the question is what's the destination if the destinations a contract that's i think your argument but if the destination here is a dealership then that's where the conflict arises that maybe only in a very very narrow way to the extent that the state laws just preclude that coming to fruition at the that fair i'm sorry i didn't understand so if the destination is simply a contract been there is no conflict with the state law because that process can unfold they got the contract they don't necessarily get the dealership but if it is in fact that the worship read if that's what the statute means and that's really where we this is judge britons are excellent one of the very beginning about what the remedy here is if the remedy is a dealership then it seems like michigan's law could unfold here but only in the instance in which it actually been precluded is a dealership from happening that's the conflict in that period but our fundamental point is i do not think the intent to unconditionally put a prevailing dealer into a dealership is shown from the language of some forty seven what shown from some forty seven is a conditional an opportunity to become a dealer or a chance to become a dealer and if you read that intent into some forty seven then there is no conflict at all ok point one quick point i was to hear opposing counsel say they agree the customer unusual issues are clearly erroneous standard factual findings i had a big long commentary on that but i agree i think it is clearly erroneous it was judge cox's factual findings on to that last point i don't think i don't think of it the statute doesn't vision a conditional trip to the contract again if you look at subsection e the sentence after talks about the letter of intent the statute says after executing the sales and service agreement and successfully completing the prerequisites for their end there's no contemplation that between the letter of intent and the sales and service agreement that there's going to be any lengthy state you dish a proceeding state administrative proceeding  anything of the sort the statute just talks about frankly the same thing mr tandem and testified to absolutely the elo i leads to a sales and service agreement that i ask what your specific problems are with the l o i's i mean you have a problem with what they are compared to do you have particular provisions that are are like lines a problem that you object to or you just want to look like something else now my clients can comply with yellow eyes your honor to defend yourself and it's just you correct all right ok so really it's the issue of allowing the state law protests rights all right we have cited hilman and i think the significance of helmet is a really lays out the analysis for the court the implied preemption analysis the first step is to identify the nature of the federal interest and i think it's important to think about what congress was dealing with at the time the automakers had made tremendous cuts to their dealer base as i think everyone agreed that they needed to but there was a feeling in congress somebody that the act that they had gone too far so the federal interest was to counterbalance this cut because it was having dramatic national economic impacts nationwide impacts and that's on the record two hundred thousand job losses from these dealer terminations so that's the federal interest that's the first step to be identified and then the next step is to say what effect does the state law have on that purpose and this is where i think the remedy issue is crucial to the preemption analysis and that's why they're intertwined because of the remedy is that the dealer shall be added to the network or the gel be added to the dealer network then necessarily letting michigan nevada dealer franchise laws intervene upsets that arm with that per you is if we disagree with you on that you lose your preemption argument with i would say judge rogers that if it's as i mentioned at the end of my presentation if  even if the yellow is the remedy i think there's a preemption problem but if the remedy is being added to the dealer network it's where lebanon yes i got it unless there are further questions thank you thank you two had no sight control option in the language which is what i'm asking you to do for me so fifty two point five percent of the otherwise presented to the trial court actually had no cite controlled paragraphs one through three because they were site specific i arbitrated the site my arbitration award cited to the site it said i should go back to my dorm and cite my client kept ownership of that site my client owns that site today and wants to go back to that site week how m two and a half percent understand how much of your concern would be on the other why that's what i need it's all i need all you need is the site provision remove a yes yes or no on the other of most of the the ones that did not have the site approval or world dealership correct but they're in the universe that the judge created ok but i mean chrysler makes the argument that urban dealerships and dealerships traditionally have been treated differently by the manufacturer and this is just consistent with them so as practice i mean isn't it true that griffin yes and that goes to my template argument you have to remember we're looking at a universe of l allies from new chrysler they're just born so the yellow i universe isn't that big sixteen times they gave an l why there was site specific in my argument you add in the fifty because the judge the trial court created the fifty to be part of the one twenty two universe and you asked me earlier am i willing to live with the fact finding and that was part of this fact finding that the universe was one hundred twenty two which means fifty two and a half percent did not have site selection control by chrysler and that's what i want one other issue is conflict preemption anytime there is an obstacle to the accomplishment of the federal purpose you know conflict preemption i would urge you i urge you to read in my brief the comparison of the items of what had to be arbitrated under the federal law and what gets re arbitrated in a circuit court case you under there's a lot of prints is when or how you respond he says the big difference is the inability of the objecting dealership to participate in the first arbitration they came as witnesses they came you have to remember they took not about throwing a state stat saying a state statute is a knowledge he did i'm a little reluctant to do that based on the fact that someone was a witness here's include the michigan protest law issue about the interest of the existing dealers right well isn't that a perhaps a your i see wrong oh it does let's let's go through some examples one of the things you arbitrate under the act is the permanency of the investment that was arbitrator with my client when i go i mean i'm sorry under the state law we would have to face a challenge about the permanen of our investment when i arbitrated in the federal case one of the issues was the cover dealerships current economic viability and the length of experience well my client had tremendous money and tremendous experience that's the permanen of the investment it's the same issue going to be arbitrated in the circuit court case and i can go through all of them about the issue i'm guessing how much harm it does to the to the to the when they call it facing dealer or whatever the way under the state dealer act one of the criteria at the circuit court level would be the effect on a retail new motor vehicle business and the consuming public in the relevant market area under the federal arbitration we had to prove  arbitrate the demographic and geographic characteristics of the covered dealerships market territory it's the same issue i urge you to be it's a parallel issue so why would i go and prevail all the way through this showing at an expensive arbitration process to face the same issues and what they're suggesting is maybe we should face those issues at the arbitration well then why would you have the federal law and finally and i want  lot i mean to so it's not to completely stated that you have the federal law which gets you this into the state process which otherwise without the federal law you know you never would have been negotiated with is not right judge and i don't want to be flippant but my clients here and i want to say this you're my client is here and i really want to say this to to say for chrysler or anyone to say that all she won was an opportunity you have the same opportunity have the same opportunity if i can show a certain amount of protein area judge you and i could get a letter of intent for that market area and why would you go and have to give me one but they were forced by federal law to give you that opportunity i notice absence and forty seven goal whalebone you were tired of you right but the laws kept them from doing that said instead they have to give you a contract which will get you up to step three years the law was remedial well simply put your honor we don't think anybody should have been here we believe seven forty seven from its inception was unconstitutional and as it alters the effect of the final court orders of the bankruptcy court  judge cox and his decision which denard that portion of fred martin's motion for summary judgment never addressed the underlying constitutional question he did reach a constitutional question when in footnote five he addressed an issue that was raised by what was identified as some rejected dealers who were asking the question we should be reinstated immediately with no conditions chrysler suggested that if that's the way the court interpreted seven forty seven that could raise a constitutional issue judge cox said i don't interpret the  statute the way rejected dealers want me to therefore that issue is resolved you only have a limited amount of time we don't need to worry too much about what the district court addressed are not doing well i just want to make it clear that the let's  question that we raise was never addressed so we're back to now the question of is seven forty seven unconstitutional we start with the very basic premise of the separation of powers and are the once the court's orders are final congress cannot take a step that has the effect of altering those final court ordered his right that's correct and here what we have with this scheme is not a pro specter of this is all rocking back if you look at the congressional history is limited as it is one of the main sponsor one of the main advocates said and i'm proud to lead the fight to reverse those short sided decisions when aaa then reported to congress it talked about the appeals of the manufacturers decisions all of this is looking backward so we have not only the problem of the thrust of seven forty seven we have the corollary constitutional problem of placing this review in congress's own hand picked tribunals outside the well i believe the the stronger issue is the fact that this is a backward looking statute this has this was designed to like the one in yes this is designed to alter wasn't plowed a little different in your review that for me i mean it seemed to me like well i correctly and doing a judgment of the corps as a platts that's correct year they're taking some of the effects of the court judgement and prospect of leasing you have to enter into a contract if argument i think that's correct you're on the right now as i think is correct but here i think is the proper underlying problem you know if this isn't the reopening of a final court order and basically telling the court to change its order this is a bit different twist or as it doesn't even undo the terminations of the dealerships the that otherwise would have not been terminated under without bankruptcy proceeding not directly but what it create and say it has an effect which is similar if they had done that but that's a different thing but i think going back to the question that you just raised in the preceding rebuttal without seven forty seven none of this whatever of happened that's what happens when you pass laws but things change and if this were only a prospect of and because the u s attorney has suggested that this is like any other statute that congress would pass to create some prospect a right to someone can gain the problems or that's the case but on the other hand it seems awfully different from  plan and we know the attorney general doesn't have to prove in order to be right that this is exactly like any other law need to show that it's similar enough to plow to throw it out i believe that's correct but given that standard the fact that this is designed to have that altering effect in other words what seven forty seven does is to place this review in the american arbitration association with standards that now are different than the business judgment rule of the bankruptcy court and you have no right of appeal through the article three hierarchy so given your question with respect to that it is our opinion that with what congress did and the fact that it is designed to alter the effect it's basically saying we don't like the decisions that the bankruptcy court made that's what congress essentially said so what congress says we'll create new standards that we're not to the bankruptcy court will place it in a different venue than the bankruptcy court and we're not going to allow people of that process so i don't believe that congress can basically end run the bankruptcy court orders by the creation of seven forty seven this is not a situation where chrysler as suggested by the spitzer brief was on a quest with spitzer to create a new dealership chrysler resistant all of this time because judge griffin has pointed out on a number occasions this is not a situation where chrysler got hand in hand with these arbitrating dealers and said let's go out and create new franchise question resisted all of that this was something as was pointed out that they were forced to do and but for seven forty it's force or braces to do stuff all the time are in response to that without knowing exactly how all of this but the i would say this they don't necessarily force people to get together to do something that the one doesn't want to do they can force someone to meet certain criteria to do something but to say you must get together with this person to do this result i think is an entirely different story and that's what seven forty seven has done it's said you must get together with them if the arbitrating dealer is successful in that arbitration and all we're saying is that with the way the statute was written and with the changing of the standards that these arbitration should never have taken place in the beginning and that we would not have reached the preemption issue because preemption if decided wouldn't move the underlying constitutional question but a decision of the statute unconstitutional m entire preemption issue and therefore we would ask the court read would reverse the judgment of judge cox and then they cade the l a y that christ was forced to g thank you thank you judge rogers and me please the court the united states intervene in this case to defend the constitutionality of section seven forty seven as counsel for fred martin admitted for the court to hold that the statute is unconstitutional the court would have to expand the holding and clout section seven forty seven as counsel admitted does not reopen the bankruptcy courts two thousand and nine judgments and it does not undo the terminations of the contracts between old chrysler and the dealerships plot was a very narrow ruling the supreme court held that congress cannot mandate the reopening of final judgments and cases for money damages section seven forty seven does not do that is a prospect statute it contemplates new contracts at a later period in time based in part on new facts it raises no constitutional concerns under plot it also as counsel admitted does not reopen the bankruptcy court two thousand and nine judgments one of those was to approve the transfer of the assets to new chrysler and the other was to approve the terminations of the contracts it does not undo either of those judgments  addition to the issue chrysler raised a constitutional issue that we have addressed in our briefs regarding the bankruptcy clause just briefly we don't think that section seven forty seven is a law on the subject of bankruptcy even if the court thought that it was th is uniform so it wouldn't offend that provision we also don't think that the court even needs to reach chrysler's argument regarding avoidance of the bankruptcy clause issue because we agree that the plain text of the statute makes clear that the only remedy section seven forty seven provides is a customary unusual letter of intent also raises an argument today about the problem moves and having no federal law it should depend on a forced arbitration  in article three court of appeal will i guess it's a related issue but it's a distinct issue in my mind you want to address sure your honor my understanding is that fred martin has raised that issue as similar to the pow issue that that the that section seven forty seven is allowing a non article three court to review the decision review a final judgment and that's simply not the case because section seven forty seven contemplates new contracts and mandates only prospective relief it does not allow for any review of the two thousand and nine bankruptcy court i guess the reason i see them as distinct is you could raise a plowed issue if this was just a new right that was in forcible in district court before an article three judge you could still raise the ploughed issue right win or lose right and he seems to be making an argument that's distinct from the plowed issue which is that federal rights should be decided in an arbitration rather than in a with a federal law shouldn't say you have to people like x have to pay people like y if they lose the following arbitration which is not appealable but that's sending something into a court to resolve federal law issues is he not making an argument ok for for congress to do that to have federal rights depend on arbitration this not reviewable in court to sort of send it to a private body to resolve the statute gives attorney to deal or an opportunity to to seek through arbitration certain rights and i don't think that presents any issues i guess i'm not aware of what constitutional provision in particular he's he's trying to raise that are we have to look at the old  delegation cases some of them turn on the extent to which the rights are resolved by bodies that are wrong but if you don't take it that he's making that argument that's fine thank you chrysler was forced to get into these arbitrations i would remind the court that this was an unusual circumstance and brought about all all that we had to the largest bankruptcy in history of this country occurred hundreds of thousands of people were about to lose their jobs including people who worked in these dealerships new chrysler didn't exist at the time of the bankruptcy it was just formed at the time of the bankruptcy in new chrysler took money from the united states government taxpayer money and when you take taxpayer money sometimes you take some of the strings that are attached to it and what congress decided after seeing how all of this unfolded and their intent obviously was to save jobs not cost jobs they decided that there were a lot of people who were going to lose their jobs as a result of these rejected dealers being terminated and they decided that since they're loaning money to chrysler to create jobs new chrysler create jobs that maybe we ought to take a look at that again and that goes to the issue of arbitration they didn't want they have a dam alone when essentially with chrysler they're saying we're going to give you money and we want you to take that money in and build factories and keep the factories move and we also want you to take a look at your dealer network and we want you to give an opportunity to certain group of people just a beary narrow group of people give them an opportunity to demonstrate to you why they should be a part of your dealer network that's what congress did with seven forty seven and i think it was appropriate that's that's my view because i was very involved in the lobbying some forty seven and was there when a lot of these compromises were right so i understand your position you know i have a problem with saying the remedy is the o line i'm i am conflicted your honor but for since we didn't appeal feel we have such a strong position with respect to that oh i that that we just want to get on with it we we've been stage now for three years from even dealing with the protest that they had fred martin filed i can't move forward until this matter is decided and and so we just took the position well we'll deal with we'll deal with the protest laws our laws are  as michigan we're going to be arbitrating basically the same criteria in the protests or in the protests we're going to be dealing with the same criteria i guess my feeling is we want to once will win twice and that's really why  the bankruptcy it had one after the bankruptcy it had one before seven forty seven was passed and it has one after seven forty seven is passed and even if i win my prosthesis it will still have its dealership as one your competition it just doesn't want which it had for thirty years prior to the bank chrysler bankruptcy which is another it's not really relevant to this case like you don't have standing you know i don't think he was standing at all because because his you now qualify that if this court were to determine that ohio's dealer act was preempted by seven forty seven then i would agree that he had some standing because now he has a financial interest involved and he doesn't have any opportunity to as a party deal with it but he has that opportunity so if this court decides it that judge cox was right in that seven forty seven didn't  he well we have a wild law your honor and since we didn't appeal that issue is it really before you you know we're dealing with forty five seventeen point five zero of the ohio vice code in our case and fred martin does not have standing to challenge the constitutionality of this act with judge cox's decision and that's what judge cox said and even if you look at fred martin's pleadings they clearly indicate that the only reason they're here is because of the polk pot possibility that there would be preemption with that possibility gone with judge conscious decision they were they were you your honor i will try to be fairly brief here for the time with respect to the u s attorneys argument we have a fundamental disagreement about the effect of seven forty seven your story saying that there isn't a reopening of the orders there is to reopen there is an altering of the effect of the orders for cars but for seven forty seven the bankruptcy orders would be in effect none of this would have happened and i think it was judge griffin said raised judge cox then did address that in deciding that motion but if you go back and look at the concept of article three standing you have competitors standing that deals with the actual injury we don't think there's any question there's actual injury because we've had to go through this process to date will have to go through any protest parsnips in the future and if you look at competitor standing i don't think there's any question that that we need to criteria causation  to challenge to action again section seven forty seven the revival of spits or something like line vehicles and overlapping market there's a causation redress ability we meet that because a seven forty seven is unconstitutional then there's