the court i'm here on behalf of great lakes peru company the appellant the defendant below i've reserved three minutes for rebuttal time and i'm going to start with the first of multiple errors of law committed by the district court in ruling that southern glazers the plaintiff below deserved an injunction against my client and the quickest one is a reparable injury it's completely axiomatic that irreparable injury is a necessary finding in order to injunction southern pleasers entire case rests on the notion that it has to stop what it alleges is a wrongful termination of terminations without just cause however the parties agreement section ten d has a specific liquidated damages provision and it's a liquidated damages provision that specifically contemplates the harm that the point of try to enjoy in other words terminations without just cause it's a it's a one time trailing multiple very simple thing to have a number you know the argument goes here that your opponents that it doesn't have a number it's not calculable kind of thing is that legitimate i don't think so because it has a formula in the formula that ties in and this is very very common in the industry to simply say if you sold x number of cases for beer with a four dollar markup we multiply that and in this case times one for the prior twelve month period it was a very simple formula arguing this first because you think it's simply starve or because you think your best argument i think i can get through very quickly your honor but i'm happy to turn to section eighty four f  if you look at section eighty four f and i'm going to say by the way it's the franchise law it's actually the ohio alcohol beverages franchise act and i'm going to use the citation instead of one three three three point eight four eight five i'm just going to say section eighty system you've got the manufacturer at the top that's the producer then you have the wholesale distributor they sell to the retailer the retailer sells to the to the consuming public and the relationship in this state is govern partially by the franchise law and the franchise law do one of three things it has one bucket of things that says you have to do this it has a second bucket that says you can't do this and everything else is still left to the discretion of the parties to contract and in fact section eighty three of the agreement specifically instructs it's one of those you shall the party shall enter into an agreement setting forth their rights and obligations now you take that command and this court has recognized that the parties can contract for additional protections as long as they don't conflict with the franchise law so when you come to the transaction and you're familiar with the facts glazers had been our distributor southern glazers is a change of control entity after the parent company of the ohio entity was merged into a company that is now owned majority owned by by different older so this was clearly a change of control of the district court found i n that case the only way there's a substantial question on the law of whether we had the right to approve or disapprove the the business is whether the contractual provision calling for approval is invalid and if you look at the first section where it talks about the transfer of a business you will search in vain for an absolute prohibition there and that's the only way there's a serious question if there is an absolute prohibition and in fact if you look elsewhere in section eighty four the legislature knew exactly how to do that there's plenty of things that are very simple instead when it comes to a sale or transfer of the business what the statute says is that the manufacturer has to respect the rights the rights of the wholesaler one of those rights they don't arise in a vacuum the rights arise from that section eighty three mandatory contract between the parties and here the contract said that if there was going to be a change o twenty percent or more we have the right to approve it and then it also says that in doing that we have to act in good faith well if it was an absolute prohibition there's no discretion or no action to apply a good faith standard to whatsoever to judge watts and find that you did not consent in good faith we were not that's a great question we were not given the opportunity to exercise or good faith or anything else s also says that your consent must be given in good faith at accordance with the reasonable standards of fair dealing that was there a finding by judge watson that violated the good faith standard of sub and the reasonable standard of fair dealing no your honor and that's because it's crucial to find a violation of the franchise act well here answer's yes yes of course  and here in southern blazers southern blazers position from even before closing was we're going to rely on a case called jamison cross it's a nine hundred ninety six directed i worked just a court case it doesn't involve a contract it's i might find no abuse of discretion but when he appears to apply the wrong legal standards it appears to me that it might be clearly erroneous but your honor that's our position is that this was a clearly incorrect legal standard applied and therefore it was per se an abuse of discretion to enter the injunction so yes we can because an abuse of any time of violations of the law of of naturally amounts to an implications here southern glacier is the largest distributor of wine and liquor i guess united states i mean it's a collage of but you don't want them to distribute your beer and it is because they don't consider the beer business seriously or what's what's behind all this it seems like the largest distributor would be a good distributor for your microbrewery but what's the what's the practical problem so glazers inc was a wine and spirits and beer distributor they actually distributed miller coors and multiple arnott's now we've got southern glacier and now we've got southern blazers which really has very very little beer business at all and no beer that your problem that they're beer is not their expertise or i mean what i mean i recognize this is a contract interpretation thing i'm just trying to find out if you went to mediation it was unsuccessful and try to figure out why you know i understand that your honor and yes really  the danger here is that when you have a when you have a wine and spirits focused house that really looks at beer as a completely not even secondary tertiary and it's such a low priority southern blazers because they are the the goliath in the industry they're focused on the diaz yos in the gallows of the world and that's your concern although there is no perfect performance efficiency at least at this point but you're worried that that might be  and the point here though is that we were never given the opportunity to even go through the process where we would get into examining examining good faith whether it was reasonable to approve or disapprove because southern glazers from day one took the position that we didn't have the we didn't have the legal right notwithstanding the fact that as judge watson found clearly but for the invalidity of section but for the alleged invalidity of section nine a this transaction would have triggered all rights under section nine a so we have a clear breach of the agreement as well as what we believe is a breach of section eighty four f very briefly your honor of section eighty four  r r view of section eighty four f is that that first clause that talks about the transfer of a business is a is not a complete prohibition it has these requirements of good faith except iraq but again we were never given the opportunity and the only way there is a serious question in this case since we were never given that opportunity is if you interpret that transfer of business provision as a complete ban on the kind of contracts will provision we had in section nine a and then further when you look at section the second clause if you will of section eighty four f which talks about the transfer of sale or transfer of a franchise in our view little common sense suggests that just because the intermediate corporate entity remained the same the ohio glazers entity i mean it converted to an l l c and a few other things but effectively it remained the same but we already have that from the district court  action what's an acknowledged that yes that that the yes and but didn't make the little distinction because it's you know that that was made in the cross case well i think he did i thought you answered that question earlier it was a change of ownership and then the question becomes our view is because there was a change of control that is it per se sale or transfer of the frail i think that was he didn't weigh in on that i'm sorry about being unclear about that your honor and  here our view is that while the franchise and we agree franchise is defined it's the relationship between the manufacturer and the wholesaler the interpretation in our view of a sale or transfer is one that ought to borrow from the tri county case a functional test focused on control tri county involves section eighty five d of the law which involves transfers among suppliers but the policies are the same in the esper case and in the tri county case the court recognized that the legislature in an act in the franchise law saw the importance of the supplier knowing with whom it's doing business and you know if you look at the colgate case in the n t trust area and many other precedents that's a pretty fundamental principle of a company like great lakes wants to know with whom it's doing business ed your honor i'm sorry that my time is up and i will now runner smith please score obviously abuse of discretion is this course repeatedly recognized is highly deferential particularly in the injunction context but i would like to start with church griffin's question is the legal error it's not so deferential in fact well but of course the judge doesn't just make a nicely legal decision he has to consider the entirety of the four factors which is what judge watson did here and i want to address just griffin's question about what's what's going on here right what what is the motivation here and i will tell you the motivation is not performance issues it's they have another distributor waiting in the wings and what has come out in discovery since the injunction is that other distributor is indemnify and them during this litigation their pain the legal fees this is the type of opportunistic behavior that the entire statute was designed to avoid the statute didn't want to go i'm just if you want to surmise about that the next the next operation lange nobody wanted this trouble they were surprised that they didn't get consent they weren't asked to consent and it's right in the agreement well your honor there's two things to that first of all they said in an affidavit at page two eighty two page i d that even if they had been asked for consent they would not have given it so it's a really if you don't get my cause they don't think this is just they don't want to do business with the distributor correct i don't know the exact time well i mean i mean presumably in the world would that be that behavior be anything to find fault with and particularly to fad with in terms of to i mean this is not just great lakes but you got boston beer so it's the same beer distributor that was before hand no it's not it's a subsidiary of the glacier southern which is a liquor and wine distributor and even though they've got a little subsidiary up in columbus it's a answerable to miami now that's that's that's one of the complaints it's right out of miami even though you got a local it was pretty warehouse where it was previously run out of texas  mean that there might be portions of an agreement that would be susceptible to a legal challenge this is not me that the section under consideration is the court looks at it from the perspective of under thirteen thirty three point eight three the provision is void if you talk about the provision being section tim then all of this is out the window they would not have the right to terminate have the could see it provision and that it's not prohibited by the statute and so well and so then you're forced to rely on what a case a case that doesn't even deal with it deals with a situation where the question was purely a statutory question and there was no contract fool provision requiring seeing it amazed that's where your layout so i think part of my concern on the merit to have a policeman or a injunction remedy an equity forcing these two companies that don't want to deal we are the court is making them deal with each other as opposed to having damages flowed from it i mean requiring parties to to do something they don't want to do is pretty extraordinary we want to do it your honor yeah yeah you want to do it but but this court has been clear we have to do is show a substantial question and getting back to the jamison cross may take your point earlier it is a district court decision but it is the only decision in ohio in trumpeting this particular provision this court has recchi if there is a dispute in the authority let's say there's a split amongst a district course a district court and a p r i stage following one line of that split that is a substantial question and adds i cannot prohibits it or not and it does not so in the story is far is the as far as the statutes can start it's a peripheral player not man one well i would say i would respectfully disagree with that and i think the the issue is this goes back to the jamison cross interpretation it's drawing the distinction between the franchise which is that the second half of thirteen thirty three point eight four to have in the alienation of the business and what the court recognizes is the distinction there is they don't want the distributor going out and just saying here i'm going to give my beer distributor agreement to home depot for instance and that's why there's a consent provision in the second half  statute but there is no consent provision in the first half the statute instead it says they must respect our rights and they must proceed in good faith where there was no contractual provision and world does jamieson cross have to tell us about this case just as the stench in his not much to tell us i don't think can see as anything really to tell us i mean this comes right down to the contract in my as much as judge dad was my neighbor and i know he's he is no longer with us but i didn't really appreciate the analysis that went on there even though and the fact that it didn't have a contract that makes it even a federal court it's not binding the state court in what this is a matter of state law i'm just saying that as it your court your client brought to our federal court rather than going to ohio which was in ohio questions of law or probably better result in ohio court but you know what ohio does on this we have to make our best guess of what the ohio supreme court would rule what judge dow did is not district it was president for judge day and so if you know i mean any other district court district judge in that district could have got a different way and that view would have been just as valid but who really  of missing the point to talk about this and cross it seems very much but the other point is the general similes come back in and made revisions to the statute they've never saw seen fit to say well that's the only  regimes the motor vehicles franchise that right in trying to distinction between the language that is in that statute in the language is this here and i think that's an appropriate mode of analysis for sash for interpretation in part of the issue as a stage which system decision being made very early in the case is trying to preserve the status quo to enable the trial to proceed and only you know obviously you and you and i know this this court says  injunction goes up in smoke and tomorrow you know in july judge watson finds that we win then how do you judge watch it has to be told what the law is if he is wrongly interpreted the ohio franchise law which i believe he is just going to compound the situation by having a trial applying his erroneous view while franchise  but the brief is that just cause in ohio is limited to performance breaches and that therefore the breach of the contract cannot be some you know just cause as a term is not defined but it has some examples of what is just cause and then thirteen thirty three point eight six it has the performance based requirements so i think it is fair to say if you're doing something that's in violation of something in thirteen thirty three point eight five or really close to that or in thirteen through three point eight six which is the performance issues then that's just cause they don't think you can go beyond that that you could you would concede that just cause is more than a performance breach i would i would and would you concede if the contract were valid as interpreted in conjunction with the other inconsistency with the statute then i think that's probably ok that probably would be just cause correct correct i think i mean again it would need to be material you couldn't include some superfluous clause and say that that's a technical somebody else to do it and so of course it would be it would be business malpractise for my client upon learning that there was this change and we were not being allowed to approve it and therefore we had to put in motion determination to not talk to another distributor simply business reality on the point about good cause your honor i thought it was a good a good question and excuse me yes just causing many states that the statutory phrase is good cause and here it's just because  there is a provision in the cases that were cited in the brief really go to this point that a supplier's unilateral economic need doesn't supply just cause but the very core sion of the franchise law it's section eighty five b three that establishes that principle also says except in a case where there is a breach of the franchise or a breach of this act and in our view both of those things happened so we we think