[00:00:15] Speaker 01:
May it please the court, my name is Agnieszka Frischman for the plaintiff's appellants, and I'd like to reserve- Speak a little louder, please.

[00:00:21] Speaker 01:
Of course.

[00:00:22] Speaker 01:
My name is Agnieszka Frischman for the plaintiff's appellants, and I'd like to reserve five minutes, please, for a medal, if I may.

[00:00:27] Speaker 01:
Please watch the clock.

[00:00:30] Speaker 01:
So when this case was last here before another panel, the panel determined that Congress had intentionally decided not to include liability under the civil action provision of the Trafficking Victim Protection Act for those who attempt or conspire to benefit from forced labor.

[00:00:49] Speaker 01:
Shortly thereafter, and in direct response to that decision, the Congress, unanimously in a bipartisan bill without a single vote in opposition, responded to that decision by putting in the words this Court said were missing from the Civil Remedy and in making its intent clear that Congress had always intended that attempt or conspiracy liability existed under the Civil Remedy provision.

[00:01:13] Speaker 01:
In close days, literally days after that bill was signed into law, we contacted opposing counsel, and then as soon as we were able, under the local rules, we filed a motion for 60B relief with the district court.

[00:01:26] Speaker 01:
The district court denied our motion, we contend, abusing its discretion by basing its decision on errors of law.

[00:01:34] Speaker 01:
The district court found that the ATRA, the Abolish Trafficking Reauthorization Act, was not clarifying, despite Congress's decision to entitle it clarifying and technical, thereby adopting the settled meaning of those phrases, which means it's a clarifying amendment and retroactive under well-established precedent.

[00:01:51] Speaker 01:
And you have the amicus from Jerry Congressman Nadler, who was the chairman of the Judiciary Committee, saying Congress had intentionally chosen those words because courts have said that's enough to signify that amendment is retroactive and clarifying.

[00:02:04] Speaker 01:
And also it meets the test that this panel, this court, this Ninth Circuit has set out for clarifying and technical amendments happen soon thereafter the ambiguity arose and is consistent with the text, the original text of the amendment.

[00:02:17] Speaker 03:
We said in Ratha 1 that the text was unambiguous and didn't include attempt to knowingly benefit in the civil liability provisions.

[00:02:30] Speaker 01:
I'm sorry, could you repeat the question please?

[00:02:33] Speaker 03:
In Ratha 1, we said the text was unambiguous.

[00:02:37] Speaker 03:
So we're bound by that.

[00:02:39] Speaker 03:
Are we bound by that decision?

[00:02:43] Speaker 01:
No.

[00:02:44] Speaker 01:
And I don't think the decision clearly stated it was unambiguous.

[00:02:48] Speaker 01:
No other court had read it in that manner.

[00:02:51] Speaker 01:
And we contended at the time that the Predicate Act structure clearly showed that it did include attempt and conspiracy liability.

[00:02:59] Speaker 01:
And the Congress agreed with our reading and immediately responded to the panel.

[00:03:03] Speaker 03:
We can't put the word attempt into the statute.

[00:03:07] Speaker 03:
So we said, based on the play language of the statute, this is what the statute means.

[00:03:13] Speaker 03:
Of course, the intent of Congress is taken from the language of the statute.

[00:03:19] Speaker 03:
So why aren't we bound by that?

[00:03:22] Speaker 03:
The Congress could say, we're clarifying this statute going forward.

[00:03:26] Speaker 03:
It's a new Congress, right?

[00:03:29] Speaker 03:
And they're clarifying it going forward.

[00:03:32] Speaker 03:
But I think we're bound.

[00:03:33] Speaker 03:
I don't understand why we're not bound by the determination in our first opinion.

[00:03:41] Speaker 01:
Well, the clarification doctrine is a well-established doctrine.

[00:03:44] Speaker 01:
It's part of the conversation between Congress and the courts.

[00:03:48] Speaker 01:
And part of the doctrine is that Congress does have the power to correct an erroneous decision and to state what it had previously intended.

[00:03:57] Speaker 01:
And that's what Congress did here on a bipartisan bill without a single vote in opposition, unanimously decided that the panel had got it wrong, that Congress had always intended

[00:04:08] Speaker 01:
to include attempt and conspiracy liability because of the way they structured the statute with the predicate acts where attempt and conspiracy attached to the underlying predicate criminal act and then the civil remedy attached in a piggyback fashion to the criminal provision.

[00:04:25] Speaker 00:
So essentially your argument is that it was basically that Congress viewed it as a scrivener's error not having put that attempt in every spot where they meant to put it.

[00:04:37] Speaker 01:
I think Congress read this statute somewhat differently, but acknowledged that this panel had a reading that was a possible alternate reading.

[00:04:46] Speaker 03:
None of that is in the concurrent legislative history or in the statute itself.

[00:04:51] Speaker 03:
The only thing in the statute is the word clarifying, right?

[00:04:55] Speaker 03:
Isn't that correct?

[00:04:56] Speaker 03:
They didn't say the statute will be retroactive.

[00:04:59] Speaker 03:
They didn't say,

[00:05:00] Speaker 03:
The effective date is in the past.

[00:05:02] Speaker 03:
They didn't mention Ratha.

[00:05:04] Speaker 03:
There's nothing like that in either the statute or in the contemporaneous legislative history.

[00:05:12] Speaker 03:
Am I correct?

[00:05:14] Speaker 01:
So there is no legislative history.

[00:05:16] Speaker 03:
The statute was passed in a bill that- Is that correct?

[00:05:20] Speaker 03:
There is nothing other than the word clarifying.

[00:05:22] Speaker 03:
Congress gave no indication of its intent other than that word.

[00:05:26] Speaker 03:
But the courts have traditionally looked at- Is that true?

[00:05:29] Speaker 01:
Is that correct?

[00:05:30] Speaker 01:
No, I think it's not correct.

[00:05:33] Speaker 01:
So what else is there that shows Congress's intent?

[00:05:36] Speaker 01:
In every case that has been cited to you, or the word clarifying has been the thing that courts have rested on, it has been in the title.

[00:05:43] Speaker 01:
Okay, I'm just asking, in this case, what is there other than that word?

[00:05:47] Speaker 03:
We have the amicus by Chairman Nadler, who is the chairman of the House- After the fact in the amicus brief, so that has very little-

[00:05:54] Speaker 01:
So courts have also looked at the timing, and there are dozens of cases where courts have found an amendment to be clarifying where there's no legislative history and no text at all.

[00:06:05] Speaker 01:
In fact, Callejas, Benoni, there are several cases we cited to you where the court decided an amendment was clarifying simply based on the timing.

[00:06:13] Speaker 01:
And courts have said common sense tells us that Congress was reacting to this decision that they believed was wrongly decided and acted to correct it.

[00:06:20] Speaker 03:
But you also cited two cases that you said created a circuit split.

[00:06:25] Speaker 03:
But I think it was Riccio and Rodriguez.

[00:06:30] Speaker 03:
But I didn't see any language in those opinions.

[00:06:34] Speaker 03:
I was actually interpreting the statute.

[00:06:37] Speaker 03:
So what do you think is the best argument that there was a circuit split with the Ninth Circuit before the amendment?

[00:06:45] Speaker 01:
There was no case up until the panel decision in Ratha that had held that there was no attempt or conspiracy liability under the civil remedy.

[00:06:53] Speaker 01:
There have literally been dozens of cases that have been litigated.

[00:06:56] Speaker 01:
in which attempt was pled and concluded, or conspiracy was pled.

[00:07:01] Speaker 01:
There have been dozens of cases that have gone forward on that basis.

[00:07:04] Speaker 01:
And in Riccio, the court, just as Suda writing for the First Circuit, applied 1594 to the entire, kind of perhaps overexpansively, but he applied 1594, the attempt provision, directly to 1595, the civil remedy.

[00:07:26] Speaker 01:
And then there's just a bunch of, dozens of district court cases that we cited where Congress, where the courts found that there was attempt, the Perugia case from New York was a district court case where the nurses alleged that they had, there was an attempt to benefit.

[00:07:39] Speaker 01:
There was a case we cited where a man was forced to look for other jobs and it was the Sarsawaki case, I think is how you pronounce it, but in that case it was an attempt to benefit.

[00:07:51] Speaker 01:
And dozens of cases have gone forward under that theory.

[00:07:54] Speaker 01:
This is the first court that has said, and first court to reach this issue squarely, it is the first court to reach the issue squarely and held that there was no attempt or conspiracy liability for attempts to benefit.

[00:08:05] Speaker 01:
And Congress reacted immediately.

[00:08:07] Speaker 01:
This fact pattern falls squarely within the well-established clarification doctrine.

[00:08:11] Speaker 01:
Congress reacted immediately, unanimously on a bipartisan basis,

[00:08:16] Speaker 01:
to this decision and enacted a statute that puts in the exact words that... Immediately, you mean after the Supreme Court denied cert?

[00:08:25] Speaker 03:
Because it wasn't immediately after our opinion.

[00:08:28] Speaker 01:
It was in the works immediately after the opinion.

[00:08:31] Speaker 01:
It just took that long to get to floor passage.

[00:08:34] Speaker 01:
But they began work on it pretty closely thereafter.

[00:08:38] Speaker 01:
And I know because I was invited to speak to congressional briefings on this matter.

[00:08:42] Speaker 01:
So I know because I talked to the staff about this case and about what had happened here.

[00:08:47] Speaker 01:
So they began working on it shortly thereafter, passed it in the very first reauthorization.

[00:08:52] Speaker 01:
It was bipartisan.

[00:08:53] Speaker 01:
It was unanimous.

[00:08:54] Speaker 01:
In fact, in the staff briefings that I attended, I was accompanied by the former Trump administration officials who had been responsible for enforcement of human trafficking and forced labor crimes.

[00:09:06] Speaker 01:
the facts of this case really fall 100% within the clarification doctrine.

[00:09:10] Speaker 01:
Congress acted immediately, bipartisan, and unanimously after the decision.

[00:09:15] Speaker 01:
Congress didn't act after Riccio, after Pajo, or after the other district court cases where attempt or conspiracy liability was pled.

[00:09:22] Speaker 01:
That was what Congress understood the statute to mean and didn't correct those decisions.

[00:09:27] Speaker 02:
Quick question.

[00:09:27] Speaker 02:
So I mean, the underlying concern in our whole retroactivity doctrines is,

[00:09:32] Speaker 02:
holding people responsible for conduct that they didn't know was unlawful at the time because of how the law looked at the time that they acted.

[00:09:40] Speaker 02:
So given that that's our whole concern in this area, how is it that if, let's just accept that Congress intended the attempt to be included all along, but they didn't include it.

[00:09:52] Speaker 02:
So how is it that fixing an omission, if that's what we want to call it, could ever be clarifying in this context?

[00:09:58] Speaker 02:
Because we definitionally have a situation where

[00:10:01] Speaker 02:
at the time of conduct, it was not specified under the law that you could not do this.

[00:10:08] Speaker 01:
So I think it was specified.

[00:10:11] Speaker 01:
I mean, I think Congress thought our interpretation was correct.

[00:10:13] Speaker 01:
The attempt liability clearly attaches to 1589B, right?

[00:10:17] Speaker 01:
There's a provision in 1594 that says, an attempt shall be treated as a completed offense.

[00:10:25] Speaker 00:
Council, can I ask you a timing question that relates to what Judge Forrest just asked?

[00:10:31] Speaker 00:
You, and I could spend time looking for it, but I think you will know the answer faster.

[00:10:37] Speaker 00:
You have mentioned numerous district court cases in which liability attached

[00:10:43] Speaker 00:
for attempts in this context, did any of those cases occur before the acts pleaded in this complaint occurred?

[00:10:56] Speaker 00:
In other words, would a person have been on notice that their conduct was covered?

[00:11:06] Speaker 01:
Yeah, I think there's no doubt, because there's no dispute that the criminal provision provides for attempt liability.

[00:11:13] Speaker 01:
So even if the civil didn't, they knew the criminal did.

[00:11:17] Speaker 01:
Yeah, and actually the first panel recognized that and put in a footnote when the opinion was amended, recognizing the attempt liability attached to the criminal provision.

[00:11:26] Speaker 01:
And to this day, we think the better reading of the statute would have been, as Congress thought, but the panel did not, was that because the criminal provision includes attempt liability,

[00:11:36] Speaker 01:
plainly by 1594 attaching to 1589B.

[00:11:40] Speaker 00:
So even if they didn't know they could be civilly liable, they knew that their activity was forbidden?

[00:11:45] Speaker 01:
Correct.

[00:11:45] Speaker 01:
They were on notice that they were subject to criminal liability for both attempts and conspiracies during the entire time that the statute was in effect.

[00:11:52] Speaker 03:
You want to save some time for rebuttal?

[00:11:54] Speaker 01:
They do.

[00:11:55] Speaker 01:
Thank you.

[00:12:05] Speaker 03:
Thank you.

[00:12:05] Speaker 03:
I'm Barbara Taylor on behalf of Appellee Rubicon Resources.

[00:12:12] Speaker 03:
Just a couple of points, jumping off of your questions to opposing counsel.

[00:12:17] Speaker 03:
Regarding the text of the statute being unambiguous as held by the prior panel, it is law of the case that... How is that possible in the context where Congress has said... Well, let me just back up and ask more directly.

[00:12:35] Speaker 00:
If, contrary to your position, this was a clarifying and technical amendment and not a substantive amendment, do you agree that it would be retroactive?

[00:12:53] Speaker 03:
A clarifying change in the law or amendment of a statute, according to the Ninth Circuit, is retroactive.

[00:13:03] Speaker 03:
The primary case that we've cited, the ABKCO music versus Laverre, is that it applies to pending cases.

[00:13:13] Speaker 03:
It does not say that it applies to a case that has been finally adjudicated and the time for seeking a petition for writ of certiorari has passed.

[00:13:22] Speaker 00:
So we would say that even if you accept... Okay, that's a different question.

[00:13:27] Speaker 00:
So if I understand your answer, it is that yes, if it is clarifying and technical, clarifying or technical, it is retroactive.

[00:13:39] Speaker 00:
But in your opinion, for another reason, they could not take advantage of that.

[00:13:44] Speaker 00:
Is that a fair summary?

[00:13:46] Speaker 03:
Yes, Your Honor, that is correct.

[00:13:48] Speaker 03:
Is the word clarifying in the title of the enactment sufficient to make it a clarifying amendment under our case law?

[00:13:55] Speaker 03:
No, I do not believe so.

[00:13:57] Speaker 03:
There are cases in the Ninth Circuit that say that the title alone is not sufficient.

[00:14:02] Speaker 03:
We cited a number of cases where the legislative history or part of the text of the statute itself indicated that it would be clarifying.

[00:14:11] Speaker 03:
One of the most prominent examples of where Congress steps in and says, we don't agree with what the court has done, is the amendment of the Fragile Enforcement Recovery Act in 2009 under the False Claims Act, where the Congress stepped in and said that the Supreme Court got it wrong on one of the prongs of the False Claims Act statute in the Allison Engine case.

[00:14:36] Speaker 03:
And peppered throughout the legislative history, they cite that case.

[00:14:39] Speaker 03:
that case got it wrong, we're amending, and we're going to make this amendment retroactive to two days before the Supreme Court decided the case.

[00:14:47] Speaker 00:
Counsel, how do you square your position with ABCO, which you've just cited, which says we honor Congress's clarification label and accept the new provisions as a statement of what the statute has meant all along?

[00:15:02] Speaker 00:
that it gives great weight and deference to the label in the absence of a clear indicator that Congress actually meant something else.

[00:15:15] Speaker 03:
Other than other cases saying that the title alone is not sufficient, you need something more.

[00:15:20] Speaker 03:
In APCO, was there more?

[00:15:22] Speaker 03:
I thought there was a long history of a specific interpretation in the courts, and I believe there was.

[00:15:28] Speaker 03:
It was under the Copyright Act.

[00:15:30] Speaker 03:
I don't have the facts of the case right before me.

[00:15:32] Speaker 00:
Well, in this case, given the

[00:15:34] Speaker 00:
history of the use of attempt in this arena by other courts than ours, and given the structural identity of the activities that are criminal and the activities that can be the source of civil liability, why isn't that the something more that helps to clarify or helps to shed light on Congress's intent?

[00:16:04] Speaker 03:
Well, something that has to be, I guess, emphasized here is that the TVPRA, the Trafficking Act, is a criminal statute.

[00:16:13] Speaker 03:
And the civil remedy provision was added in 2003.

[00:16:17] Speaker 00:
2003, correct.

[00:16:19] Speaker 03:
Now, before that, of course, there was a provision in the criminal statute, section 1594, that stated that an attempt or a conspiracy is punishable the same as

[00:16:33] Speaker 03:
a completed substantive offense.

[00:16:36] Speaker 03:
And that is typical of criminal law.

[00:16:40] Speaker 00:
Well, you also have the Fourth Circuit's decision in Roe, though, saying that it's absolutely clear that the civil liability is intended to be exactly coextensive with the criminal liability.

[00:16:54] Speaker 00:
You're asking us, well, we did create a circuit split in that sense, and you're asking us to keep that split going, it sounds like.

[00:17:03] Speaker 03:
It's not a split that would continue to keep going into the future since Congress changed the law.

[00:17:09] Speaker 03:
Going forward, you will have to recognize that attempts are recognizable under the civil remedy provision.

[00:17:16] Speaker 03:
If, you know, in another issue, getting back to what the standard is a review of what the district court did, it's an abuse of discretion standard.

[00:17:27] Speaker 03:
And the district court found that there were no extraordinary circumstances, which you have to show to get relief under 60B6, because he had two independent reasons for not vacating his judgment.

[00:17:41] Speaker 03:
One was he did not believe that the statute amendment was retroactive.

[00:17:46] Speaker 03:
And he thought it substantively changed the law, and therefore he wouldn't apply it without clear congressional intent.

[00:17:52] Speaker 03:
Number two, he had independent grounds for his judgment of sovereign judgment.

[00:17:58] Speaker 03:
He had three grounds that he ruled on, and only one of them, the attempt issue, was reached by the prior panel.

[00:18:06] Speaker 03:
So from his perspective, you know, he stood by his prior grounds, and there was no reason for him to vacate his judgment.

[00:18:20] Speaker 03:
If there is, just going back to maybe some of the other issues that came up in the argument, if there really is a circuit split,

[00:18:31] Speaker 03:
And I know that the plaintiffs have pointed out the Riccio versus McLean case.

[00:18:38] Speaker 03:
Is there a circuit split?

[00:18:39] Speaker 03:
Did Riccio or I think the other case they cited is Rodriguez?

[00:18:44] Speaker 03:
Yes.

[00:18:45] Speaker 03:
I didn't see anything specifically on point, but what is your position that there is a circuit split?

[00:18:52] Speaker 02:
Well, no.

[00:18:53] Speaker 03:
My position is there isn't.

[00:18:54] Speaker 03:
In particular, the Riccio case

[00:18:56] Speaker 03:
what Justice Souter, I guess he was sitting by designation in the First Circuit, found was that it was an attempt to commit the substantive offense of sex trafficking.

[00:19:06] Speaker 03:
It wasn't an attempt to benefit.

[00:19:09] Speaker 03:
And, you know, he read attempt into that, which I, again, don't think is appropriate in a criminal statute that has a provision on attempt being punishable the same as a substantive offense to automatically say that that then is imported into a civil remedy provision

[00:19:26] Speaker 00:
But you did acknowledge that the Doe case from the Fourth Circuit is contrary to your analysis because it specifically says that the civil remedy availability is identical to what is covered by the criminal statutes.

[00:19:43] Speaker 03:
That's not a case that the plaintiffs are relying on for the search.

[00:19:48] Speaker 00:
So?

[00:19:48] Speaker 00:
Does that mean we shouldn't consider it?

[00:19:50] Speaker 03:
It means wrongly decided.

[00:19:53] Speaker 00:
Well, are you saying we shouldn't consider it because it wasn't cited in the briefs?

[00:19:58] Speaker 03:
I mean, we do that every day of the week.

[00:19:59] Speaker 03:
Any case on point.

[00:20:01] Speaker 03:
If there really was a circuit split, OK, and assuming there was a circuit split, which is exactly what the plaintiffs argued in seeking rehearing on Bonk, which was denied.

[00:20:10] Speaker 03:
They pointed out Riccio.

[00:20:11] Speaker 03:
They pointed out the Rodriguez case.

[00:20:13] Speaker 03:
They didn't cite the Doe case.

[00:20:16] Speaker 03:
So they had that opportunity.

[00:20:17] Speaker 03:
Then they had an opportunity to seek certiorari.

[00:20:21] Speaker 03:
with circuit split is one of the reasons that you have a ground to seek certiorari with the Supreme Court.

[00:20:26] Speaker 03:
They sought certiorari as to two other defendants on another ground that the Ninth Circuit affirmed the district court on the extraterritorial jurisdiction point.

[00:20:36] Speaker 03:
So there's nothing stopping them from doing that.

[00:20:39] Speaker 03:
And in the context of trying to show that there were extraordinary circumstances that the district court

[00:20:45] Speaker 03:
you know, wrongly didn't find diligence of the party seeking to vacate the judgment is something to consider.

[00:20:53] Speaker 03:
And I know they say that they acted as quickly as they could after the amendment was enacted.

[00:20:58] Speaker 03:
I think President Biden signed it on January 5, 2023.

[00:21:04] Speaker 03:
But again, the prior panel's decision was, the first decision, opinion was February 2022.

[00:21:12] Speaker 03:
They sought rehearing en banc.

[00:21:14] Speaker 03:
At that point, they could have sought even a panel rehearing once they saw how the Ninth Circuit ruled on the attempt issue to clarify what they had overlooked about how to interpret that statute or about Congress's intent.

[00:21:26] Speaker 03:
And they didn't do that.

[00:21:27] Speaker 03:
They sought rehearing en banc, pointing out there was a circuit split.

[00:21:31] Speaker 03:
And when that was denied,

[00:21:33] Speaker 03:
Instead of seeking certiorari as to this issue for this particular defendant, they sought certiorari on the extraterritorial jurisdiction point for two other defendants, and the Supreme Court denied cert.

[00:21:45] Speaker 03:
So for all intents and purposes, this law, if it changed or if it was clarified, really was almost a year later.

[00:21:53] Speaker 03:
And at some point, you know, I know Rule 60B, the purpose of it is to, in a way, upset finality under appropriate circumstances.

[00:22:01] Speaker 03:
But given the history of this case, it really should have been final at the point that they didn't pursue it any further with the Supreme Court.

[00:22:10] Speaker 03:
Is there any indication, I mean, we're looking for indicia that Congress intended for this amendment to be applied retroactively.

[00:22:18] Speaker 03:
We have the title of the enactment which says clarifying, the word clarifying.

[00:22:24] Speaker 03:
Was there any indication that Congress was aware of Roe v. Howard, I guess it is, as a circuit split?

[00:22:31] Speaker 03:
So in other words, there's cases like ABCA which say if Congress is acting to address a circuit split.

[00:22:40] Speaker 03:
So was there any evidence of what Congress knew or thought that there was a circuit split?

[00:22:45] Speaker 03:
Not that I can find in the actual legislative history, regardless of what later Congress may say in an amicus brief.

[00:22:54] Speaker 03:
There's a question whether the statute is ambiguous, but I think we resolved that in RAPA 1 and said it's clear.

[00:23:05] Speaker 03:
I don't know that we could say there's ambiguity.

[00:23:08] Speaker 03:
So I'm looking for other indicia, and you said no legislative history.

[00:23:12] Speaker 00:
No.

[00:23:12] Speaker 03:
I mean, you could look at it two ways.

[00:23:14] Speaker 03:
You could look at it that Congress acted to correct Ratha 1, or you could look at it that Congress acted because it realized

[00:23:23] Speaker 03:
on reading the analysis in Ratha 1, oh, well, if we want to have attempts to be civilly recognizable, we better include those words in the civil rights information.

[00:23:30] Speaker 00:
Well, they told, but Congress told us which they intended by the title, and that title is, makes sense in light of the structure of the statute.

[00:23:42] Speaker 00:
So, I mean, I don't know why that's an open question, whether they meant it, to be clarifying or not.

[00:23:49] Speaker 00:
They said they did.

[00:23:50] Speaker 03:
It just depends on how much weight you want to accord the title alone.

[00:23:53] Speaker 03:
And there are, you know, case law in the Ninth Circuit that says that's not necessarily enough.

[00:23:58] Speaker 03:
You've got to look at the totality of the circumstances.

[00:24:01] Speaker 03:
And you have to look at whether Congress intended it to be retroactive.

[00:24:04] Speaker 03:
I mean, it's not intended to be clarifying, but clarifying and retroactive.

[00:24:09] Speaker 03:
That's what I'm concerned about.

[00:24:16] Speaker 03:
So if there's anything else you would like me to address on the other parts of the argument Apparently not.

[00:24:23] Speaker 03:
Thank you.

[00:24:23] Speaker 00:
Thank you Council I I know you probably have your own thoughts, but I would appreciate your responding to two things one is whether it's too late for a

[00:24:39] Speaker 00:
your client to take advantage of retroactivity because the case was no longer pending, and also what effect it has that the district court in the very end of the opinion said, well, there were other grounds.

[00:24:54] Speaker 01:
So it's not too late.

[00:24:55] Speaker 01:
In Bino, this circuit held that you count the timeliness from the day of the change in law, not from the original judgment.

[00:25:03] Speaker 01:
Otherwise, you would never be able to bring a case for a change in law.

[00:25:07] Speaker 01:
So we were literally days after the law changed and that Congress passed that.

[00:25:12] Speaker 01:
So it's clearly timely.

[00:25:14] Speaker 01:
And then the appropriate procedure in this circuit when there is a change in law is to look at 60B.

[00:25:20] Speaker 01:
And we meet all the criteria for 60B relief.

[00:25:23] Speaker 01:
We contend that the court below made errors of law, significant errors of law, when he denied the 60B motion.

[00:25:29] Speaker 01:
I think he erred when he found it wasn't clarifying, and I have some points I'd like to respond to, but his decision that we didn't – that on participation in a venture is a clear error of law.

[00:25:37] Speaker 01:
We submitted to you, I think last week, the recent decision by the D.C.

[00:25:41] Speaker 01:
Circuit with Judge Rao adopted the exact definition that we had proposed for participation in a venture, which is the dictionary definition.

[00:25:47] Speaker 01:
So every circuit channel to have considered that issue of what it means to participate in a venture has chosen the dictionary definition, which is one that we said was appropriate, and not the kind of idiosyncratic definition the lower court used to operate or manage a venture, which the lower court drew from Rico jurisprudence that has no textual root in the TVPRA.

[00:26:08] Speaker 01:
So we contend that's just a clear error of law.

[00:26:10] Speaker 01:
There's already two, three other circuits that have adopted the dictionary definition.

[00:26:15] Speaker 01:
We also contend he erred when he adopted, when he stepped in the shoes of the jury and determined knowledge.

[00:26:21] Speaker 01:
There is a plethora of facts that Rubicon knew or should have known or recklessly disregarded that the victims were victims of trafficking and forced labor.

[00:26:29] Speaker 01:
There's, you know,

[00:26:30] Speaker 01:
news articles where reporters wrote about trafficking at that very factory, passport withholding at that factory, and Rubicon executives wrote ouch on the thing and circulated it.

[00:26:41] Speaker 01:
There was a meeting called by the United Nations that was called by Walmart, which rejected the shrimp because of concerns about forced labor, and Walmart had organized a United Nations meeting about the trafficking at this factory where Rubicon was called out as a bad actor.

[00:26:57] Speaker 01:
and where the Rubicon executive attended and then wrote a memo back to the United States saying that Patana needs help understanding the national and international implications of his problems.

[00:27:06] Speaker 01:
It is clear that there was enough evidence in the record that the decision as to whether or not there was knowledge should have gone to a jury and the court shouldn't have stepped in the shoes of the jury to decide that.

[00:27:16] Speaker 01:
But if I might take a second just to respond to a couple things, I just wanted to say that this Court has never required a circuit split.

[00:27:23] Speaker 01:
And as far as I know, no circuit has required a circuit split for a clarifying amendment.

[00:27:27] Speaker 01:
Congress clearly has the authority to correct a decision that it believes is wrong.

[00:27:32] Speaker 01:
And that's what it did here.

[00:27:33] Speaker 01:
But to the extent that we need a circuit split, I forgot to mention the Tenth Circuit in the Sherman case and the Bistline case adopted the same reading of the statute that we had proposed.

[00:27:42] Speaker 01:
and said that a liability for benefiting is available, both under 1589b, where it was always, attempt was always available, and 1595a.

[00:27:52] Speaker 01:
So courts have taken a wide range of responses, approaches to reading the statute.

[00:27:57] Speaker 01:
Some of them have said there's a parallel track to beneficiary liability.

[00:28:01] Speaker 01:
Some have compressed beneficiary liability into section 1595.

[00:28:06] Speaker 01:
and then overlay the attempt onto 1595, like Justice Studer did in Richo.

[00:28:11] Speaker 01:
Tenth Circuit said you can go in two tracks, one of which attempt and benefit clearly and undisputably attaches.

[00:28:17] Speaker 01:
So there is some ambiguity.

[00:28:19] Speaker 01:
Courts have gone in different directions, but the only time that Congress has weighed in is when this panel, the prior panel, said there was no attempt or conspiracy liability, and Congress weighed in promptly.

[00:28:29] Speaker 01:
And I think the title is- I'll wrap up here over time.

[00:28:33] Speaker 01:
Okay.

[00:28:33] Speaker 01:
Thanks.

[00:28:34] Speaker 01:
I just wanted to also say that in U.S.

[00:28:35] Speaker 01:
versus Contreras, it was only clarification in the title.

[00:28:39] Speaker 01:
There was no other indicia.

[00:28:41] Speaker 01:
And there are at least three or four other cases that we cited in the brief where there was no legislative history and no title, and the court just determined it was clarifying based on the context and the timing.

[00:28:51] Speaker 01:
Thank you very much.

[00:28:52] Speaker 03:
The case of Roth of the Recon Resources is submitted.

[00:28:57] Speaker 03:
and we'll now take a brief recess.