good morning your honors david bamberger for the pollen chemical producers and distributors association morning with your permission i'd like to reserve two minutes for rebuttal with your honor's the complaint in this case challenge conflict with the from now the california legislature has passed the new law which eliminates this barrier to generic entry there are some differences and i'll address those specifically in response to some of the court questions that were sent to council last week but the particular permissions feature of the old statute that we challenge is very or to entry for generics has been abolished and what that means in practical terms of very simple of course for a pesticide producer who already has a registration there's no barrier for those who don't have a registration they now have another means of the media entry challenge that aspect of the old law because it's not a feature of the new law what about the pending stately huge the pending state litigation first of all is a case that does not  it is litigation that involves the old california it does your honor but it does not involve the letter of authorization requirement that's that's the key point that other litigation challenge the way that the department required data that is the challenge of the department requiring less data of generics then basic registrants and it challenged the way that the department reviewed the data submitted by generics but the letter of authorisation requirement the particular feature of the old law that we challenge is not an issue in that case in fact this scenario there were gustafson already has a registration which is being challenged as having been issued on lawfully means of the letter of authorization has nothing to do with that case in fact in the sixty five page decision that was submitted to the court i believe it was earlier this week the only reference to the letter of authorization requirement is some historical reference in regard to some defendant that was dismissed three years ago and there's no mention of preemption whatsoever i just want to correct the only way it was your honor and were not parties in that case but my understanding from a review of the record is the only way that it was involved in that case is it was listed by the department not by g fifteenth affirmative defense three years ago when the answer was filed since that time there has been military geisha and concerning preemption and importantly it was just a general blanket statement that the statute was preempted it had nothing to preemption issue in the court of appeals of pain because it's never been pressed or litigated in any way just appears as an affirmative defense by the department so the case is really a red herring and we would submit that the question here is whether there is a lot of was whether it was within the scope of the complaint for example that there was well the question was does the complaint challenge anything beyond the former failure of the of california to require mandatory licensing after ten years of exclusive use the answer that question is no this question number three whether there was any challenge to the in can grow in say the twenty five year fifth for a term after exclusive licensing  and the seven year term under the new statute for beta being compensable if you will or for cost sharing i should say we didn't challenge that of course we didn't have the new law so to the extent that the laws are different yes there are some differences in the money back up to what your complaints that is there anything in your complaint that challenges the compelled arbitrated price usage of data as opposed to our clients members generics wanted to cite data to california's d p r which had already been cited to e p a and which was outside the exclusive use period that they would and that's ten years ten years you're on keep going that they would be allowed to do that we didn't ask for a determination as to what the process would be what the price would be we just want to the court to tell d t r you may not hold up somebodies registration unless they are citing data from within this exclusive use period you may not hold up some of these registration until this cost sharing arrangement is resolved we wanted them to follow the fifth model where you get the right to apply and get a registration and then all the cost sharing issues are resolved later so you have no objection to the letter of authorization requirement after ten years because it was no turn due to arbitrated price in fester and under the new california law that's right your honor but under the old california law there was no arbitrated price model or scenario if after ten years under the old law if you wanted to use data the only way you could use it is if the owner of the data gave you permission you didn't have available to you what is provided under fifty of which it is that you can make what's called an offer to pay now under the new california law you can do that at the time when you apply for your pesticide registration you make an offer to pay to the owner which does not necessarily resolve the cost sharing issue but the department then the whole registration process is taken out of the loop you are entitled to enter the market and it was the inability to do that that we challenged let's happenstance or through no fault of the the losing party through no voluntary act of the party it's not a manipulation of the court system but something just happens and the case becomes moot then it is the duty of the  that move us deprive the party adversely affected by the lower court judgment of the opportunity to seek review and i write about absolutely correct your injunctive relief including an award of costs against the more than twenty thousand dollars i believe and that it should not be in a position where going forward that decision which we submit and i won't get into it here because i think your stand time is limited but we as we've argued in our briefs that decision was wrong in a number of respects and i don't know what litigation may ensue in the future and whether there be any members of our association who may have quoted back to them provisions or excerpts from that decision it's in some sense impossible to forsee but there should be no precludes of a fact at have matzos court well it that it's certainly in terms of technically is a dividing i guess the question and the answer is yes your honor but we all know that if judge mass is certainly a respected district court judge has made a decision on an issue and it's an issue that comes up in a in another district court in california or another court in the ninth circuit or for that matter in new york in a district court a little hard to describe what happened here is happens now no your honor  i would submit it is happenstance and i would refer the court in particular to the the national black police association case that we cited in our grief and that case refers t decisions from a number of circuits including the circuit the longer limited partnership case the jones case in the tenth circuit every one of those cases the move is caused by legislation as being not attributable to the voluntary act which is the test not attributable attributable to the voluntary act of the appellant and there are good reasons for that first of all in terms of the just from a practical standpoint our clients had been trying to get this relief for years and as is evidenced in the record they tried to get a legislative fix before they ever filed this lawsuit and lost so they have no reason to expect that if they didn't succeed in court they could go to the legislature and get relief secondly the relief that they got it's not as if it were drafted by them there are significant differences between the current california in terms of how much data is compensable fifteen years versus seventeen years whether it's california only data or just data submitted to e p a let me describe an instance in which i thought mutinous was clearly a case i was involved in clearly happenstance it was an offshoot of the ruby ridge shootout and involved the criminal prosecution of an f b i agent named horiuchi and state prosecutors in idaho decided to prosecute him criminally you removed it to this to record it with all of way up to an embankment pinioned of this court saying that he was subject to criminal prosecution in state court notwithstanding the fact he was a federal officer in the exercise of his duties and within a month or so there was an election in this little county in idaho when there was a new prosecutor appointed and he said i don't want to have anything to do with this case and he dismissed it  horiuchi argued properly happenstance has now made this case moot i have absolutely nothing to do with that and the fact that it's moot now deprives me of the right to seek supreme court review of the erroneous  know the ninth circuit in vain now are you telling us that if gore you cheese lawyer had met with the prosecutor during the campaign contributed to his campaign and encouraged him to dismiss the case once he got elected that it would still be happenstance i think it's a different situation there are i don't dispute that the case that you described is is certainly a good example of happenstance what i'm saying is that in this instance find that when legislation comes out that fixes the problem that c p d n a is responsible for it as if it's its own voluntary act not only would it be the first time that to my knowledge that any court matter up were they required for example to just remain silent but were they permitted to advocate or lobby but only if they did it badly it why i  but by any stretch of my questions to suggest that i just the word happenstance to me has a meaning which means that somebody had nothing to do with it but i understand your argument you're saying the legislature could have said no and you're out of the other things whole though it is absolutely true that happenstance appears in the cases that we're i would submit to you that the cases do not limit the circumstances when the court of appeals should vacate circumstances that are just happenstance in the sense of a bolt of lightning out of the clear blue sky before i get you down to your two minutes what about the alternative of sending it to side whether it should be vacated well there are two questions one vacated the first question is was attributable to the voluntary act of the appellant and if the answer to that question can be that's what district courts are for and if it's great about happenstance or non hampton stance wouldn't the better alternative be disinvested now i'm not sure how one could find facts in this situation your honor where the legislature has just and acted something i don't know how you could find whether c t a made summary committed some voluntary act i submit to you the policy reasons given by the national flag that black police association dictate that the courts should not should not suspect that the legislature is manipulating anything if the only reason to think that the california legislature they're going to turn around and remarkable is that you know your honor none whatsoever were hypothetically then the next question that has to be answered at the district court level is a question of whether this was done with the intent to manipulate the judicial system what are the equities balancing the equities weighing that is the hardships and consequences to one side or another and then finally weighing the policy considerations on the one hand the tween respecting the finale of judgments and on the other hand the consideration was your honor noted that judgments that can't be reviewed because the cases become moot should not be final and should be subject to reality g questions letting us know that it's our position of the cases not nude we believe cases correctly decided below should be affirmed however if the court is inclined to find it moot and inclined to vacate there's growing much left your honor i think first and asking that i'd like to ask the court to look at this from the point of perspective if one were representing the c p a in this case which after all susan representational capacity on behalf of generic opposed to future action because of me back up before you answer question this is the cleric tory action an injunction action that the genius of the declarator reaction is you can craft the issues you want to the record that to date to see what's really going on here the syngenta case was brought against the department which is also the common to find it in this case alleging that the dog park mike was failing to enforce the law to the benefit of generic registrars generic registrants after all are the interest that c p a represents the record reflects that c b d a brought this suit specifically for the purpose of the railing of the suit in the district court a s to the reasons they brought the suit they said they dropped the suit because there's another suit pending and we believe preemption would end it all now if one were representing c p d under these circumstances given the role in the eleven point five j what they should be saying is please do not dismiss this case is moot because the interests of generic registrars remain on the line it is a contested whether or not section one hundred eleven point five was properly authorization requirement the letter of authorization requirement is now either eliminated with respect to the first ten years or it's identical to fair f or it may run five fifteen seven instead of five years but that doesn't appear to be within the scope of this complaint either where is where are those controversies about existing registrations within the scope  purchasing from the the basic producer that's what they were seeking to a limited part in this is i read their declaratory relief their prayer in their complaint that's what they wanted to limit california's death you declared printed and thought stricken quote to the extent that they purport to grant data submitters in california exclusive use rights to data that were previously submitted to e p a and are subject to fit for his mandatory data licensing scheme i'd struggle to find anything in that language that would encompass the universe of disputes about that you referred to about prior registrations that may or may not have affirmative defenses raised about the preemptive force of it well your honor it's our position that substantial portions of that remain are that and now the four letter of authorisation is only one of the statute remains in effect with respect to the registrations that were granted before january want to wreck that's what the court of appeals is still i'm trying to see how that comes within the scope of his complaint any any such dispute struggling still because i have a little more to say that about that your honor except that if the relief they sought had been granted and this court not that we would want to do so would grant the relief that they judge hawkins in the case of jacob vs versus alaska appears to indicate that when the field becomes moot by virtue of an amendment to a statute while the case is pending on appeal the case is not moved and that is because the be reenacted it's not really a question of whether it isn't the standard articulated in our cases whether there's a i forget the exact words the clear probability or something like that that the legislature will it isn't that the standard in our cases there seems to be a divergence in the cases around of there are at least three ninth circuit cases that address situations where a case was decided in the district court addressing the constitutionality of  statute and the statute was either amended or repealed while the case was on appeal and the court clearly said that the amendment or repeal of the statute while the cases on a few of those not moot the statute because among other reasons the statute it's arguably distinguishable in that it was a impose criminal sanctions i don't think that's material here because what the court said about those sanctions is that sanctions or relief could be still be had against persons who violated the statute during the period that the statute was in effect and for that reason it was not moved of course that was a case that dealt with potential past conduct in this case may not be why this could well the claim in so far as they were requesting prospect of relief did not address past conduct but at the time they brought it it addressed present conduct it's past now but it was within the scope of the complaint time to close the case and you are since the court is entertaining on the issue of movements and implicit little bit before you move on is there any basis upon which the court can think it is even possible much less likely that the legislature is going to reenact the old statu i don't think we can predict that your honor then act of the statute once they thought it reflected good purposes at the time i think that there is an ebb and flow in the constant tension between the benefits between generic production and and discovery research the introduction of new products in california has a very unique stake in that issue as the largest consumer of agricultural pesticide crowd of some kind of the same of the district courts do would they inquire into the advocacy of the other side before the legislature would they make findings of fact that too much success dealing with the political party and having to relive again that issue in other words the interest of finality now what's the reason why we think it would be appropriate for judge matsch to make this determination because as you indicate here are it's district courts which are really the court could if it inquired if a desire to inquire in depth into this issue of happenstance which i think is legitimately an issue under the circumstances as to what was the rule of the parties they lobbied and they were successful is that what you're saying your honor if this court were remanded i would make an offer of proof that this statute was brokered in the office of lobbyists employed by a number of companies of c p d a with representatives of the legislature and the found what is their legal consequence with respect to vacate or i think that would go to the issue of happenstance as to whether or not it was something that was done in the instigator of these legislatures are capable of making their own independent judgment about whether to change the law know i like to think the legislature our legislators are honest people that they'll do within the best interests of the people the state of california and what not suggest another way these are half high powered lobbyists into is to or think about is whether what they had on their mind was getting out of a bad court ruling so they wouldn't have to appeal it that is manipulating the litigation process now is it not apparent here that what they had on their mind was getting your data not your price but that it neutrally set price they didn't get the get it under the law as it stood in judge matches mine of the legislature gave it to him isn't that completely clear what was going on here what the motives were i can only say that that was one of many mothers well what what other motive that any of this have but to get your data and not have to pay you your prices to avoid the litigation in the state court where they have played this defense and hope to avoid so they were trying to get the money in order to avoid having to win a lawsuit about whether to get the money didn't they hit the home run with the legislature and not have to worry about litigation any more i think that would in well under van santo let me ask you this when the legislature changed the law how did that affect prior registration what it should do is the syngenta case addresses with remains for findings of fact is where that's not a clear c p d who was a party to this case the defendant in this case and stipulating virtually through preemption in this case is also insisting on her hips and is a defense in that suit and we have no doubt to have to do with pesticides that were registered in the seventy's and eighty's but nevertheless they do address data that were statutorily protected under the law but i think this only goes to emphasize why if they could or is on the court's mind and we don't think it should be vacated but if it is that's appropriate for the district court to make that decision and one of the things they that this court instructed district courts to consider underage the was whether or not parties to case should be collateral what would what facts could be found here would we be taking mr lamb tears deposition as to what went on in rooms and that sort of thing the point of the of the national black police officers case and the bunker case from the ninth circuit it relied on which is a twenty f second three away is that the legislature is presumed to act for good law making purposes and not to be and then if you lading judicial processes in this instance the legislature we suspect recognize that there was a problem with the law we happen to agree with that that doesn't mean that we caused the legislature to do anything  we did was assert our first amendment right to express our view that we thought the law ought to be changed what the legislature did about it was up to them i think if you're quiet for the other side persuade this this case not moot we have to think there's some kind of possibility that you will turn around and persuade the legislature to give the money back to them that they say you just persuaded the legislature to give from them to you you haven't plan do that now you both sides for their argument very interesting case the case just argued will be submitted for decision in the court will stand in recess for the