[00:00:27] Speaker 10: Good afternoon, and welcome to the Nakamura Courthouse here in Seattle. [00:00:47] Speaker 10: It's a pleasure to be here today. [00:00:48] Speaker 10: The case set for our argument at this time [00:00:53] Speaker 10: is the case of Keo Ratha et al versus Rubicon Resources LLC. [00:01:00] Speaker 10: So if the parties are ready to begin, counsel, you may come forward. [00:01:09] Speaker 11: Thank you, Your Honor. [00:01:10] Speaker 11: My name is Agnieszka Frischman. [00:01:12] Speaker 11: And may it please the court, I represent the plaintiffs. [00:01:14] Speaker 11: I'd like to reserve five minutes of my time, if I may, for Rubicon. [00:01:19] Speaker 11: When this case was first before the Ninth Circuit, the first panel, Ratha 1, that panel determined that the Congress intentionally declined to extend civil liability over persons who attempt but fail to benefit from forced labor. [00:01:36] Speaker 11: Seven months later, which is a nanosecond in Congressional time, the Congress unanimously in a bipartisan amendment entitled [00:01:45] Speaker 11: clarifying and technical update to the Civil Remedy, inserted the exact words that the first panel in Ratha 1 said were missing from the Civil Remedy Clause, and passed as part of the abolished Trafficking Restoration Act, an amendment that clarified what Congress always intended that provision to mean, that the Trafficking Victim Protection Act extends civil liability over persons who attempt but fail to benefit from forced labor. [00:02:12] Speaker 08: So I take it your point is that the statutory language before the amendment was ambiguous and so we can apply the limited exception to Landgraf. [00:02:31] Speaker 08: and concluded this is just clarifying that this isn't a change, a substantive change in the law. [00:02:36] Speaker 08: That's correct, Your Honor. [00:02:37] Speaker 08: So the first panel, Ratha 1, did not identify any unidentified terms, did not apply dictionary definitions, and really addressed this issue briefly without finding any ambiguity in the statute based on the statute's plain text. [00:02:57] Speaker 08: And of course that panel decision was unanimous. [00:03:01] Speaker 08: First of all, is that not now law of the case, that the statute was unambiguous? [00:03:07] Speaker 08: And second, if it's not, how does that suggest that there was confusion among the courts, the courts were struggling to define or apply section 1595? [00:03:23] Speaker 11: So our position is that the panel read the statute very differently from the way, of course, that we, the plaintiffs, had read it. [00:03:29] Speaker 11: We had relied on section 1589B, to which there's no dispute, even in Ratha 1, that attempt liability attaches to 1589B. [00:03:38] Speaker 08: But do you see a difference between criminal liability for an attempted criminal offense and civil liability based on attempted beneficiary status? [00:03:53] Speaker 11: Sorry, I don't know if something's happening here. [00:03:56] Speaker 11: 1589B has two parts. [00:03:58] Speaker 11: It has part A that criminalizes forced labor by abuse of process, by force, threats of force, and then it has part B that criminalizes anyone who benefits from the means described in part A. [00:04:12] Speaker 11: And that attempt liability attaches to both A and to B via Section 1594. [00:04:19] Speaker 11: And both A and B are subject to exact same penalty that's laid out in Section D of 1589B. [00:04:25] Speaker 11: So those provisions are parallel. [00:04:27] Speaker 11: They're exactly the same in the terms of their structure. [00:04:30] Speaker 11: Both of them are incorporated into 1595, which provides co-extensive civil liability over the criminal predicate acts. [00:04:39] Speaker 08: Sure, but that doesn't answer my question. [00:04:41] Speaker 08: I think I'm getting at something a little different. [00:04:45] Speaker 08: Correct me if I'm wrong, but I recall that there is a statute in this, or a provision within this statutory section that criminalizes attempt. [00:04:55] Speaker 08: 1594. [00:04:57] Speaker 08: Yeah, 1594, thank you. [00:04:59] Speaker 08: So Congress was very clear [00:05:02] Speaker 08: that there's criminal liability for attempting to violate these statutes. [00:05:06] Speaker 08: And 1589 includes attempt liability, right? [00:05:12] Speaker 08: So I still see a difference between criminal attempt liability and what appears to me to be a new theory, which Congress can enact if it sees fit, of civil liability based on an attempted benefit. [00:05:25] Speaker 08: Do you see a difference between those two theories of criminal and civil liability? [00:05:30] Speaker 11: I think that is where the conflict in the circuits come in. [00:05:33] Speaker 11: Congress intended civil liability to be coextensive with the criminal liability, and that is what Roe versus Howard found in a unanimous opinion by the Fourth Circuit. [00:05:42] Speaker 08: Roe was addressing extraterritorial jurisdiction. [00:05:45] Speaker 08: Correct. [00:05:45] Speaker 08: So I've read Roe many times, including rereading it this morning. [00:05:50] Speaker 08: And I didn't find a single word in which it interpreted [00:05:55] Speaker 08: civil liability in 1595. [00:05:57] Speaker 08: It was all about extraterritorial jurisdiction. [00:06:01] Speaker 08: And the hitch there was the RJR case. [00:06:05] Speaker 08: So they had to find a way to distinguish when Congress had found there was extraterritorial jurisdiction under RICO for criminal acts but not for civil acts. [00:06:13] Speaker 08: And so this was their hook. [00:06:14] Speaker 08: It was included. [00:06:17] Speaker 08: The civil provision was coextensive with the criminal provisions. [00:06:23] Speaker 08: What's interesting about Roe is that 1595 is not included in 1596. [00:06:26] Speaker 08: So the statute that explicitly made these crimes extraterritorial doesn't include 1595. [00:06:35] Speaker 08: But I don't see, can you point me to some language where Roe says, here's how you read 1595 and it includes an attempted benefit? [00:06:46] Speaker 11: So Roe doesn't deal with attempt, but what it does hold explicitly in the text, because that's what the basis for the entire holding is, is that the civil remedy is coextensive with the criminal predicates. [00:06:58] Speaker 11: And that is consistent with the legislative history of the TVPRA, where in the committee report, Congress said, what we're intending to do when we pass 1595, the civil liability provision, is we intend to make it coextensive with the criminal predicates so that we have civil liability for every violation of the criminal code. [00:07:16] Speaker 11: So that's what Roe held, that's what the legislative history says. [00:07:19] Speaker 11: And if you look at Justice Souter's opinion for the First Circuit in Riccio, he holds that civil liability also applies to 1595. [00:07:29] Speaker 08: So both Riccio and Roe dealt with perpetrators, unquestionably people who perpetrated criminal offenses against the victims. [00:07:37] Speaker 08: There was not an issue, certainly in Roe, there was not an issue of attempt liability or beneficiary liability. [00:07:46] Speaker 08: And in Riccio, the court said that the defendants at issue directly benefited by renting out their hotel room where the victim was being held captive and sexually assaulted. [00:07:56] Speaker 08: So they had direct beneficiary liability. [00:07:59] Speaker 08: But I didn't see anything in Riccio that talked about saying that means you can have this form of civil liability for [00:08:06] Speaker 08: attempting to benefit. [00:08:08] Speaker 11: So in ratio, Justice Souter said, the major point of our disagreement with the district court is that the district court found that the perpetrator had to succeed in the criminal act. [00:08:20] Speaker 08: Had to succeed in part of the criminal act. [00:08:23] Speaker 08: Had to succeed in essentially pimping out the victim, selling her to third parties for sexual activity. [00:08:29] Speaker 08: But they had committed crimes other than that, right? [00:08:32] Speaker 08: by holding her captive, by sexually assaulting her in the hotel room. [00:08:36] Speaker 11: Well, actually, that's why Justice Souter's opinion does deal with attempt. [00:08:41] Speaker 11: Because he said, where he describes the variety of claims that could be brought under the facts that were alleged in that case, he says one of those is claim six. [00:08:49] Speaker 11: And that is 1594 and 1595. [00:08:52] Speaker 11: So that brings me back to my first question. [00:08:57] Speaker 08: Well, I mean, I understand where you're going. [00:09:00] Speaker 08: Rishio talks about you can have civil liability for attempting to commit the crime. [00:09:05] Speaker 08: And I don't differ with you and I don't think Rother 1 differs with you that if you attempted to commit one of these offenses, there is civil liability. [00:09:15] Speaker 08: In DiTullio, we said that the civil liability, the civil remedy, is based in tort. [00:09:23] Speaker 08: It sounds in tort. [00:09:24] Speaker 08: And that was important because that's how we concluded that punitive damages were available. [00:09:29] Speaker 08: We also did an analysis comparing it to a constitutional violation in Section 1983 claim. [00:09:34] Speaker 08: But neither of those [00:09:35] Speaker 08: forms of liability that I can think of include an attempt. [00:09:39] Speaker 08: I can't think of a single instance in which you could be liable for an attempted tort. [00:09:44] Speaker 08: And the courts have said you can't be liable for an attempted constitutional violation. [00:09:49] Speaker 08: So it seems like this is a new form of civil liability, which would be a substantive change. [00:09:55] Speaker 11: So I just want to head back to Rishio for a second. [00:09:57] Speaker 11: So I wanted to make clear that in Rishio, Mr. McLean, who was kind of the primary victimizer, hadn't succeeded in forced labor, because the victim escaped before there was any act of forced commercial sex. [00:10:13] Speaker 11: So there was no benefit under Section 1599, because there had been no act of forced labor at the time that the victim escaped. [00:10:21] Speaker 11: So what Justice Souter was talking about was attempted benefit. [00:10:24] Speaker 08: Right, was attempted, an attempted crime. [00:10:28] Speaker 08: He was talking about a criminal case. [00:10:32] Speaker 11: Right, it was a civil. [00:10:33] Speaker 02: What is the, what do you ask, are you asking for Roth of One to be overruled then? [00:10:39] Speaker 11: No, we're asking the court to find that the Abolish Trafficking Restoration Act is a clarifying amendment that clarifies what Congress originally intended, which was that there was attempt and conspiracy liability included in the civil remedy. [00:10:54] Speaker 02: That's what we're asking for. [00:10:55] Speaker 02: So what is the standard of proof, if you will, that you have to meet for this to be retroactive? [00:11:03] Speaker 11: So courts have looked at three things. [00:11:04] Speaker 11: They've looked at timing, they've looked at the text, and they've looked at the context. [00:11:09] Speaker 11: And for timing, courts have found that when something follows quick upon the discovery of a dispute or an ambiguity, that it's more likely to be clarifying. [00:11:17] Speaker 02: These are factors we've identified. [00:11:20] Speaker 02: But do they roll up into some ultimate determination that what? [00:11:24] Speaker 02: That Congress was clear, or do you not have to show that? [00:11:28] Speaker 11: Well, here, Congress was clear. [00:11:29] Speaker 11: They used the words clarifying and technical, which carries with it a settled meaning. [00:11:35] Speaker 02: Do you agree that you have to show that Congress was clear? [00:11:39] Speaker 02: That would be how Landsgraf would require this. [00:11:43] Speaker 02: You have to either have an express command, or you have to have a clear indication that this would be retroactive. [00:11:49] Speaker 02: Do you agree that you have to meet that standard? [00:11:52] Speaker 11: I think the clarification doctrine doesn't have to meet the Landgraf standard, but I think here in this case we do. [00:11:58] Speaker 11: I think Congress's choice to label the amendment clarifying and technical is a clear statement of congressional intent, and it relies on the settled meaning that this court and every other circuit except the federal circuit has used to determine whether amendments are clarifying. [00:12:13] Speaker 11: Every circuit has recognized that when you say something is clarifying, [00:12:16] Speaker 11: that that's what Congress's intent is, and that the court should give effect to congressional intent. [00:12:21] Speaker 02: And it's a little more ambiguous than that, this clarifying update. [00:12:24] Speaker 02: But I guess it raises the question of whether this clarifying amendment exception to Landsgraf is a valid exception. [00:12:33] Speaker 02: Because if it suggests that you don't have to prove that Congress clearly intended retroactivity, and that all you have to prove is that the amendment was clarifying, [00:12:44] Speaker 02: It seems like that's a bit of an end run around Landsgraf. [00:12:48] Speaker 11: Well, I know that the Washington Legal Foundation submitted an amicus brief making that argument. [00:12:52] Speaker 11: Every circuit, though, recognizes the clarification doctrine. [00:12:56] Speaker 11: I think it's part of the conversation between the courts and the Congress that when a dispute arises, Congress can correct a scrivener's error or can correct a misinterpretation and make clear what it always intended. [00:13:08] Speaker 11: And that's what the clarification doctrine has meant for 100 years. [00:13:12] Speaker 09: Well, counsel, that isn't really [00:13:14] Speaker 09: in contradiction with Landgraf because part two of Landgraf allows a court to conclude that an amendment was retroactive if Congress made its intent clear. [00:13:30] Speaker 09: So it seems to me an application of that doctrine. [00:13:34] Speaker 09: One of the indicia being that something is labeled clarifying and technical rather than brand new. [00:13:44] Speaker 09: So I don't think that what you're arguing is necessarily inconsistent with recognizing that land graph may apply. [00:13:56] Speaker 11: That's correct, Your Honor. [00:13:57] Speaker 11: In fact, Landgraf has that paragraph that says there are salutary and benign purposes for legislation that applies retroactively, and one of them is to correct mistakes. [00:14:06] Speaker 05: I have a practical question for you. [00:14:08] Speaker 05: You're here, you were on a 60B6, correct? [00:14:12] Speaker 05: Correct. [00:14:13] Speaker 05: And the district court denied summary judgment on three bases. [00:14:17] Speaker 05: One, there were no facts demonstrating that Rubicon knowingly participated in a human trafficking venture. [00:14:24] Speaker 05: There is no evidence that Rubicon knew or should have known about the alleged human trafficking. [00:14:30] Speaker 05: And three, there is no evidence that Rubicon benefited from the alleged human trafficking. [00:14:37] Speaker 05: It seems to me that the ATRA or ATRA only implicates the third basis. [00:14:44] Speaker 05: Am I correct? [00:14:46] Speaker 05: That's correct, your honor. [00:14:47] Speaker 05: So can you explain how we can't just affirm? [00:14:52] Speaker 05: I'm just trying to see how. [00:14:55] Speaker 05: If we said it only affects the first three, but the other two are valid basis for summary judgment, why are we doing this? [00:15:04] Speaker 11: So we contend that the other two bases are errors of law. [00:15:08] Speaker 11: In terms of the knowledge decision that he made, he misapplied the summary judgment standard, drew the inferences against plaintiff, and actually was inconsistent with the decision in Ratha 1. [00:15:20] Speaker 11: In Ratha 1, the court bifurcated the knowledge and said, [00:15:24] Speaker 11: February 2020 there were general reports which are insufficient but then Ratha one panel found that as of February 2012 that Rubicon was undisputably aware of the whistleblower reports and the district court. [00:15:38] Speaker 05: I'm sort of wondering if we find that ATRA is retroactive but nonetheless does not affect the first or second basis for the district court's order granting summary judgment. [00:15:48] Speaker 05: Don't we have to affirm the denial of the rule 60B6? [00:15:52] Speaker 11: I don't think so, Your Honor. [00:15:53] Speaker 11: I think because the district court incorporated those two rulings as alternative bases, this court can reach them. [00:15:59] Speaker 11: And as I was saying, that they are both errors of law. [00:16:02] Speaker 11: So the knowledge, we think he incorrectly applied Ratha 1 and failed to appreciate that we had multiple facts in the record about knowledge that post-state February 2012. [00:16:11] Speaker 11: And as [00:16:12] Speaker 11: The opinion in Ratha 1 concluded Rubicon was undisputably aware of the forced labor at that point due to whistleblower reports, due to the United Nations meeting about that. [00:16:22] Speaker 01: Hansel, what's our standard of review on the summary judgment issues that would be embedded in the Rule 60B order? [00:16:29] Speaker 11: I think it's de novo. [00:16:32] Speaker 01: There might be a legal error that could constitute an abuse of discretion, but the summary judgment [00:16:40] Speaker 01: in the prior proceeding was untouched. [00:16:45] Speaker 01: It's because we reached another ground, you might have had your opportunity to appeal it, but is it de novo because [00:16:53] Speaker 11: Because it's legal errors, and the district court incorporated those legal errors in the 60B ruling, because he could have ruled on other things and not incorporated those, and then that would be a different procedural posture. [00:17:05] Speaker 11: But because he expressly incorporated those erroneous rulings in the 60B order, I believe they're up and that you can reach them. [00:17:14] Speaker 08: So does it become a, does that mean you can use Rule 60B as a way to reconsider? [00:17:20] Speaker 08: I mean, the other basis that the district court reached, the first panel did not. [00:17:25] Speaker 08: But now it's, we're gonna make a retroactivity argument and so now everything's fair game again and you get a second appeal of those issues. [00:17:33] Speaker 11: Well, but the district court did incorporate those rulings. [00:17:35] Speaker 11: If the district court hadn't done that, then maybe that would be what you said. [00:17:40] Speaker 11: But the court did incorporate those rulings. [00:17:43] Speaker 11: I think they are fairly presented. [00:17:45] Speaker 11: It is de novo review. [00:17:47] Speaker 11: And we contend that they are both errors of law. [00:17:49] Speaker 11: And if I could just go back to that. [00:17:50] Speaker 10: But before you do that, did the prior court that reviewed this [00:17:59] Speaker 10: weigh in on whether the district court was correct on the participation in a venture or known or should have known? [00:18:08] Speaker 11: So the court did not weigh in on the participation. [00:18:12] Speaker 11: The Court of Appeals in Ratha 1 did not reach the participation in a venture. [00:18:16] Speaker 11: And our position is that the court below, the district court, has picked an idiosyncratic definition that is different from every other court in the United States that has considered that issue. [00:18:26] Speaker 11: And it's a clear [00:18:27] Speaker 10: I guess here, not getting a second bite at the apple. [00:18:32] Speaker 10: It's an interesting procedural context that we're looking at this because often that would have had the opportunity to do that, but that never got litigated because the prior panel just stopped after the knowing. [00:18:47] Speaker 11: basis, is that correct? [00:18:49] Speaker 11: That's correct. [00:18:50] Speaker 11: And as I said earlier, the prior panel did point out that Rubicon actually undisputably was aware as of February 2012. [00:18:57] Speaker 10: In your view, I guess what's your best case in support of your argument that ACTRA is a clarification of the law that should be applied retroactively? [00:19:08] Speaker 11: I think it's really almost all of the cases, right? [00:19:11] Speaker 11: There's U.S. [00:19:11] Speaker 11: versus Contreras, there's Beverly Hospital versus Belshee, there's Brown versus Thompson, there's Calejas, there's Bedoni. [00:19:17] Speaker 11: There are a wealth of cases that have considered when Congress acts to clarify a statute where there's a mistake in the wording or they feel the court has got it wrong. [00:19:27] Speaker 11: And this is a routine and traditional exercise. [00:19:30] Speaker 01: Which is it, I guess, because you've mentioned that it might be a mistake. [00:19:32] Speaker 01: It might be, I'm sorry, I'm over here. [00:19:35] Speaker 01: It might be a mistake, Scrivener's error. [00:19:37] Speaker 01: It might be ambiguous. [00:19:41] Speaker 01: It might have been clear, which is what we had previously held, but we might have gotten it wrong. [00:19:48] Speaker 01: Which do you think this is? [00:19:51] Speaker 11: I don't think we will ever know. [00:19:53] Speaker 11: I know that the dissent below thought it was a scrivener's errand. [00:19:57] Speaker 11: It very well might be. [00:19:59] Speaker 11: This statute is a complicated statute with multiple interlocking parts. [00:20:02] Speaker 11: And even the defendants have said it lacks clarity in how those parts interact. [00:20:08] Speaker 01: Has any other, I mean we've talked about these other cases that talk about the statute as a whole, and those are certainly informative about confusion in the courts, but has any other court looked at this language, 1595A, and found it to anything but plain? [00:20:24] Speaker 01: Found it to be a Scrivener's error? [00:20:25] Speaker 01: Found it to be ambiguous? [00:20:27] Speaker 11: Well, at least four circuits have found that it's the opposite of what Rafa won found, and the Congress didn't act after any of those decisions, right? [00:20:35] Speaker 11: So after Justice Souter found that 1594 modifies 1595A, the Congress didn't act. [00:20:42] Speaker 11: And after the 10th Circuit ruled in Bisline and Sherman versus Teen Solutions and found that as we had argued that you can get a civil remedy by proceeding [00:20:50] Speaker 11: under the 1589b prong separately from 1595, the Congress didn't act. [00:20:56] Speaker 11: And then after Pajo versus Rodriguez, where the D.C. [00:20:59] Speaker 11: Circuit found that 1589b is a criminal violation as a perpetrator that you then get entitled to a civil remedy under 1595, Congress didn't act. [00:21:11] Speaker 11: But when this court ruled in Ratha 1 that 1595 does not extend to people who attempt or conspire to benefit, Congress acted within seven months. [00:21:20] Speaker 01: I wanted to ask, this question wasn't what was before the Supreme Court. [00:21:24] Speaker 01: There's a lot made of the fact that Congress acted immediately after the denial of cert there. [00:21:30] Speaker 01: What are we supposed to take of that? [00:21:33] Speaker 01: That question wasn't going to change. [00:21:34] Speaker 01: Maybe the Supreme Court would revisit the entire case. [00:21:38] Speaker 01: This question wasn't before the court in that dispute. [00:21:42] Speaker 01: This question had been settled by the prior opinion. [00:21:46] Speaker 11: That's correct, but the district court found that we were diligent and that we had taken every avenue necessary to show that we were diligent. [00:21:54] Speaker 01: Oh, sure, but with respect to the timing, I'm sorry, on the second Landsgraf factor, with respect to the timing there, the fact that Congress acted immediately. [00:22:01] Speaker 01: Well, they didn't act immediately after our opinion. [00:22:04] Speaker 01: They acted shortly after the denial of cert on a different question presented, right? [00:22:09] Speaker 11: So I actually looked up the dates of every clarifying case that was cited to you and the dates that Congress acted. [00:22:15] Speaker 11: And this case is the shortest time period but one. [00:22:17] Speaker 11: Almost in all of the other cases, it's a year, two years, or five years. [00:22:22] Speaker 01: OK, from rapid one to? [00:22:24] Speaker 11: From the date of an appellate decision to the date that Congress acts. [00:22:28] Speaker 11: So in terms of the case law on what is timely and what is short, this case is well within the very shortest range that courts have. [00:22:35] Speaker 02: How is the timing, though, probative of the retroactivity question? [00:22:38] Speaker 02: I mean, it's definitely probative of the idea that Congress didn't like Ratha 1. [00:22:43] Speaker 02: But that's a different question than whether the statute should apply retroactively. [00:22:49] Speaker 11: Well, courts that have given context to the clarification doctrine have found that the timing is one of the things that indicates that amendment is clarifying as opposed to a change, because it responds to a recent enactment. [00:23:00] Speaker 11: And the language is that it follows fast upon a dispute. [00:23:04] Speaker 04: What's your position? [00:23:05] Speaker 04: Does the Langdorf exception have to survive for you to survive in this case? [00:23:10] Speaker 04: Or can you make it under the Langdorf traditional presumption? [00:23:14] Speaker 11: We believe that we can make it under the Landgraf traditional presumption. [00:23:17] Speaker 11: We believe Congress made a clear statement by picking the language, clarifying and technical, that courts have for decades said indicates that Congress meant for the amendment to apply retroactively. [00:23:29] Speaker 04: It's such a high bar. [00:23:30] Speaker 04: And as my colleague has pointed out, it really has to be clear. [00:23:34] Speaker 04: I don't find a lot of history there. [00:23:36] Speaker 04: There's just not much. [00:23:39] Speaker 04: The timing is interesting. [00:23:41] Speaker 04: The language of the title is interesting. [00:23:44] Speaker 04: Let me ask you this. [00:23:47] Speaker 04: By my count, the D.C. [00:23:49] Speaker 04: Circuit, the first, third, fourth, fifth, seventh, ninth, tenth, and eleventh, by whatever names still retain the Langdorf exception, what role, if any, should that play in our analysis, whether or not we officially recognize that that exception still applies? [00:24:07] Speaker 11: I think the weight of authority is that it does apply, that it is part of the conversation between the Congress and the courts. [00:24:13] Speaker 11: It's an important corrective mechanism where Congress can take a look at statutes and correct Scrivener's errors, mistakes, or misreadings. [00:24:20] Speaker 04: From your perspective, it doesn't matter. [00:24:22] Speaker 04: We can go either way. [00:24:23] Speaker 04: The Lancsarf is there. [00:24:24] Speaker 04: You still win from your perspective. [00:24:25] Speaker 04: Correct. [00:24:26] Speaker 08: So what do we make of the language in section 1595 that allows civil action against the perpetrator? [00:24:37] Speaker 08: or whoever knowingly benefits. [00:24:41] Speaker 08: And that was the language before ATRA. [00:24:43] Speaker 08: So now, or whoever knowingly benefit or attempts or conspires to benefit. [00:24:48] Speaker 08: So is that or significant? [00:24:51] Speaker 08: In other words, are perpetrators and those who knowingly benefit two different categories or are they the same? [00:24:59] Speaker 11: I think this shows why the statute is somewhat ambiguous and unclear. [00:25:03] Speaker 11: But what is clear is that Congress acted to ensure that attempt or conspiracy liability, or I'm sorry, attempt or conspiracy is included in the civil remedy and that liability extends over those. [00:25:15] Speaker 11: But just the way that you read it, it is unclear. [00:25:17] Speaker 11: It's a little bit ambiguous. [00:25:18] Speaker 08: It says or. [00:25:19] Speaker 08: It doesn't say. [00:25:20] Speaker 08: defined as or including those, it says or, which pretty strongly suggests these are two different ways that you could get at imposing this liability. [00:25:31] Speaker 11: But I think the lesson from the entire structure of the statute is that Congress was extending the beneficiary clause. [00:25:38] Speaker 11: Congress understood that trafficking and forced labor, what the driver is is economic benefit. [00:25:44] Speaker 11: And they were trying to cut that off. [00:25:46] Speaker 11: And it was in 1589B the entire time. [00:25:49] Speaker 11: So it's not like negative numbers. [00:25:51] Speaker 11: The fact that there's a redundancy doesn't mean it cancels out. [00:25:54] Speaker 08: So I have another question for you. [00:25:55] Speaker 08: You said that Rother 1 found it was undisputed that Rubicon had knowledge after the whistleblower report in February 2012. [00:26:03] Speaker 08: But it doesn't actually say that. [00:26:04] Speaker 08: It talks about Wales. [00:26:06] Speaker 08: If you recall, there were four different defendants. [00:26:08] Speaker 08: And Wales is the one who their CEO or whoever president testified they had the whistleblower report. [00:26:15] Speaker 08: Rother didn't do that. [00:26:17] Speaker 08: I don't think the Rubicon section even discusses knowledge because Rother 1 didn't reach it. [00:26:23] Speaker 11: Thought it did and if you will bear with me. [00:26:27] Speaker 11: I'll come back at my rebuttal time and give you this I'm pretty sure it did counsel if I can take you back to 60 B. So for purposes. [00:26:36] Speaker 01: Sorry. [00:26:37] Speaker 11: I just found it it is um It's right here at I have the Westlaw version. [00:26:42] Speaker 11: It's um at 1177 it's under the a and [00:26:47] Speaker 11: And it says, and February 2012 parentheses, the day before Rubicon was undisputably aware of Bratha's whistleblower report. [00:26:56] Speaker 08: I'm sorry, the pin side is 1171? [00:26:59] Speaker 08: Yeah, I can bring you my copy of that. [00:27:03] Speaker 08: It's OK, I have it. [00:27:04] Speaker 01: Thanks. [00:27:06] Speaker 01: So to show retroactivity, at least under the second prong, part of the piece is to say, well, it's a clarifying amendment, whether it's an exception or an application of that. [00:27:14] Speaker 01: It's merely clarifying what was already there. [00:27:17] Speaker 01: But for purposes of 60B, you have to establish that it's a clear and authoritative change in the law. [00:27:23] Speaker 01: Is there any tension between those two standards to say that, well, something was there all along, even if we might not have appreciated it. [00:27:33] Speaker 01: But now we get to reopen because there's been a clear and authoritative change in the law, even though it's been there all along. [00:27:39] Speaker 11: So I think APCO answers that question directly. [00:27:42] Speaker 11: APCO says that it is a change in the circuit where that decision was, right? [00:27:46] Speaker 11: So it is a change, but it is also clarifying, because Congress was clarifying that that circuit reached the wrong decision, or there was a Scrivener's error that was misinterpreted. [00:27:55] Speaker 11: So APCO answers that question squarely, I think. [00:27:59] Speaker 10: Do you want to reserve the balance of your time? [00:28:15] Speaker 07: Thank you. [00:28:17] Speaker 07: And I'm Barbara Taylor on behalf of the Defendant Appellee Rubicon Resources LLC. [00:28:22] Speaker 07: I'd like to address some of the points that were raised during Appellant's argument regarding whether [00:28:35] Speaker 07: 1589B has any relevance to the case? [00:28:40] Speaker 07: It does not. [00:28:41] Speaker 07: That is the criminal provision that has a prong, subsection B, regarding knowingly benefiting from participating in a venture which the person knew or in reckless disregard or recklessly disregarded had engaged in. [00:28:59] Speaker 07: a conduct that would violate the statute. [00:29:02] Speaker 07: The plaintiffs never pled against Rubicon a 1589B violation. [00:29:09] Speaker 07: I have from the record ER 2182 to 2186 the actual counts that were pled, and there were two counts. [00:29:25] Speaker 07: There was a count one against the perpetrators, [00:29:28] Speaker 07: Patana, alleged perpetrators, and SS Frozen food company, and account two against the alleged beneficiaries, which is Rubicon in Wales. [00:29:39] Speaker 01: Ms. [00:29:39] Speaker 01: Taylor, doesn't that create even a greater disjunction? [00:29:43] Speaker 01: I mean, so you're saying that the criminal offense has a lower mens rea than the civil offense. [00:29:50] Speaker 01: And that's one of the things that seems to be worrying that might suggest that Congress has made a mistake here. [00:29:58] Speaker 07: Well, for benefiting, there is a different mens rea for benefiting in the criminal provisions. [00:30:03] Speaker 07: In both sex trafficking, there is kind of almost a catch-all provision. [00:30:09] Speaker 07: I think it's 1593A on benefiting, and then 1589B, which is the forced labor benefiting. [00:30:16] Speaker 07: And they all are either new or in reckless disregard, whereas in the civil remedy provision, which [00:30:22] Speaker 07: Judge Beatty was pointing out perpetrators versus the beneficiaries. [00:30:25] Speaker 07: I would view that as two separate causes of action under the civil remedy provision. [00:30:30] Speaker 07: You have a cause of action against alleged perpetrators, which could be coextensive with all of the criminal substantive predicates. [00:30:40] Speaker 07: from attempt to the beneficiary in 1589B to actually committing the forced labor. [00:30:46] Speaker 07: And then you have, or the person who knowingly benefited from participation in the venture, the person knew or should have known, engaged in a violation. [00:30:56] Speaker 07: And I would call that a separate cause of action under a different class of persons, not perpetrators. [00:31:01] Speaker 07: And under that one, it is new or should have known, which is a different C enter. [00:31:07] Speaker 07: And you can't read 1589B into that new or should have known cause of action to try to get around, in our case, the fleeting issue is one thing. [00:31:16] Speaker 07: On summary judgment, it was argued to Judge Walter that Rubicon knew or should have known. [00:31:22] Speaker 07: It was never raised that Rubicon recklessly disregarded, which further shows it was only the knew or should have known cause of action that was being pled against Rubicon. [00:31:34] Speaker 07: But I'd also like to point out just something on the Rule 60B standard. [00:31:37] Speaker 07: And we submitted a 28-J letter recently on the bank. [00:31:44] Speaker 07: Blom Bank Saul case that Justice Thomas just issued the opinion on June 5th. [00:31:49] Speaker 07: And we did that just to show that he's reiterating what the standard is and how high it is on a 60B6. [00:31:55] Speaker 07: But there's also some other issues that are pertinent. [00:31:58] Speaker 07: Plaintiff in their response to our letter said that, well, putting aside they said that Blom Bank Saul is not relevant, which I believe it is, they said that this court can review prior, quote, prior legally erroneous rulings. [00:32:13] Speaker 07: And they cited a Ninth Circuit case from 1993, a knee case versus Cabral, 985F, second 103-1 at page 103-4, where that case stated a Rule 60B motion may be granted where the party seeking relief demonstrates the court made a mistake. [00:32:30] Speaker 07: Now, Cabral didn't specifically say what prong of 60B it was addressing. [00:32:37] Speaker 07: But it was obvious from the context and the case law cited in support, it's talking about rule 60B1, which concerns mistakes, that kind of thing. [00:32:48] Speaker 07: And it cited, because number one, 60B1 has a one-year time limit to bring your motion. [00:32:55] Speaker 07: 60B6 doesn't have that time limit. [00:32:57] Speaker 07: And within days of dismissal, the plaintiff and Cabral moved under rule 60B. [00:33:02] Speaker 07: The court didn't talk about the standard for relief under Rule 60B6. [00:33:07] Speaker 07: And the two cases cover all sites, Liberty Mutual Insurance Company versus EEOC, 691F2nd, 438 at 441. [00:33:15] Speaker 07: We hope, quote, we hope the district court did have power under Rule 60B1 to reconsider its award of costs. [00:33:21] Speaker 07: It's a Ninth Circuit, 1982 case. [00:33:23] Speaker 07: And then Gila River Ranch, Incorporated versus United States, 368F2nd, 354 at page 357. [00:33:31] Speaker 07: It's Ninth Circuit, 1966. [00:33:34] Speaker 07: Quote, this is the kind of mistake that can be corrected by the district court pursuant to Rule 60B1 of the federal rules. [00:33:41] Speaker 07: And obviously, you can't address mistakes under Rule 60B1. [00:33:47] Speaker 07: There was some controversy, and I think circuit split, about whether that reached judges' mistakes or just a party's mistakes. [00:33:54] Speaker 07: And it reaches judges' mistakes under the Ninth Circuit precedent, but also in Kemp versus U.S., 596 U.S. [00:34:00] Speaker 07: 528 at 539, a 2022 case again by Justice Thomas. [00:34:06] Speaker 07: The Supreme Court held that B1 applies to mistakes of law by district courts and that a Rule 60B motion made more than one year after judgment is based on a mistake by the district court is untimely. [00:34:17] Speaker 07: So to that extent, this idea that you can use a 60B6 motion, if you have an issue that arose since the judgment such as the amendment to the Trafficking Act, but also use it just to bootstrap into completely re-re-reviewing the underlying judgment, I don't think that's allowed. [00:34:39] Speaker 07: And in fact, in Blombank Saul, [00:34:41] Speaker 07: And Justice Thomas said 60 v. [00:34:43] Speaker 07: 6 is a catch-all, quote, is a catch-all, that follows paragraphs one through five and, quote, provides only grounds for relief not already covered by the preceding five paragraphs, quote, close quote, and, quote, were it otherwise, the catch-all provision could swallow [00:34:57] Speaker 07: one through five and be used to circumvent their time bars. [00:35:01] Speaker 07: So I just want to make sure that the panel, and I'm sure you are, but just make sure you're aware that this idea that you can use a rule 60B6 to address erroneous rulings in the underlying judgment doesn't have any, I guess, [00:35:20] Speaker 07: any real basis in this case law. [00:35:23] Speaker 07: And in fact, one of our amicus is the International Franchise Association at page 12 footnote 4 cited SEC versus Berkeley Healthcare Dynamics LLC, a 2022 Ninth Circuit case, 2022 Westlaw site 4207 at page 2 saying, quote, dissatisfaction with a factual finding [00:35:46] Speaker 07: close quote, in an earlier quote summary judgment order is not a basis for relief from judgment under Rule 60B6. [00:35:55] Speaker 07: So I just want to make that clear that we've got the right standard here. [00:35:59] Speaker 07: And again, on [00:36:02] Speaker 07: I think Judge Bader, you're correct, that that case does not say anything about benefiting or attempting to benefit a concerned extraterritorial jurisdiction. [00:36:13] Speaker 07: And again, if you read it to be a civil remedy provision with two separate causes of action, [00:36:19] Speaker 07: One against perpetrators, which opens the entire panoply of criminal predicates, and one against a different class of persons held to a different level of standard beneficiaries. [00:36:31] Speaker 07: You cannot read anything regarding any of the prior case laws conflicting with this court's [00:36:39] Speaker 07: decision in Ratha 1. [00:36:41] Speaker 07: Reach over systems clean obviously wasn't dealing with attempts merely to benefit. [00:36:46] Speaker 07: In fact, Justice Souter said there was harboring the victim and receipt of a benefit. [00:36:51] Speaker 07: It was the actual crime of sex trafficking that was attempted. [00:36:55] Speaker 07: And that plays into the two different causes of action point. [00:36:59] Speaker 10: Let me ask you what I asked your friend across the aisle. [00:37:03] Speaker 10: I asked, what's your best case in support of your argument that ATRA is a substantive change in the law as opposed to a clarifying amendment? [00:37:13] Speaker 10: Which case would you point us to? [00:37:16] Speaker 07: Well, I would point to Ratha 1 as a case of first impression, that this is the law as it was before ATRA was enacted. [00:37:26] Speaker 07: Any other case? [00:37:27] Speaker 07: I would say that, [00:37:30] Speaker 07: If you look at, I think, the Belsche case, which is also a case regarding retroactivity analysis. [00:37:40] Speaker 07: And what's enough? [00:37:42] Speaker 07: If you want to go down the clarifying legislation route, even if you don't accept the Washington Legal Foundation's amicus to rethink that, and we're in the clarifying legislation world, there's a couple of points to make with that. [00:37:54] Speaker 07: Whether it's clarifying at all, and even if it is, does it reach a final judgment, a case that's already gone through the entire court system and is finally adjudicated? [00:38:04] Speaker 07: I would say that [00:38:10] Speaker 07: The rivers, there's a case, it was a Supreme Court case. [00:38:15] Speaker 07: that was cited in the Ratha 2 opinion, Rivers v. Roadway Express, that made a point about the title. [00:38:24] Speaker 07: The title might sensibly be read as meaning to correct from now on. [00:38:28] Speaker 07: And when you look at that with our title, it's clarifying and technical, and there's one more word, update. [00:38:35] Speaker 07: And Judge Ikuta in Ratha 2 made quite a point about update would seem to be more forward-looking than backward-looking. [00:38:44] Speaker 07: But again, to go back to what my best case is on the retroactivity point and the clarifying point. [00:38:57] Speaker 07: Okay, there has to be more than just a title. [00:39:02] Speaker 07: And I think in all of the cases that we have and I've cited them in our briefs, docket entry 30 are answering brief at pages 18 to 21, that title is not enough. [00:39:16] Speaker 07: As noted in the Belshe case at page 1266 note 6, apart from the word clarifying, [00:39:25] Speaker 07: In the title, which Belsi said that the word clarifying or the title is not part of the law, it was noted in Belsi. [00:39:33] Speaker 00: There's no legislation. [00:39:34] Speaker 00: Council, to that point, over here. [00:39:37] Speaker 00: To that point, in 2003, Congress used different language as well. [00:39:42] Speaker 00: 2003, they said it was an enhancement, right? [00:39:45] Speaker 00: In 2008, they also used the same language, that it was an enhancement. [00:39:49] Speaker 00: And here, they called it clarifying. [00:39:51] Speaker 00: So don't we look at both of those things? [00:39:55] Speaker 07: You can look at the title, it's not part of the law. [00:39:59] Speaker 07: But what I would say is, it's not enough. [00:40:02] Speaker 07: And I would cite you to Beaver versus Tarsier to hotels, 816 F3rd, 1170, at page 1188, 9th circuit, 2016, I'll quote. [00:40:11] Speaker 07: Neither. [00:40:12] Speaker 00: But Council, wait, hold on. [00:40:14] Speaker 00: I guess maybe I'm not being clear. [00:40:17] Speaker 00: They specifically talked about this being something new, right? [00:40:20] Speaker 00: This is an enhancement to a right. [00:40:23] Speaker 00: Here they're talking about it being clarifying and an update. [00:40:27] Speaker 00: So it's not an additional thing. [00:40:29] Speaker 00: Why is that sufficient? [00:40:33] Speaker 07: It is additional because prior to this insertion of the words that were missing in the statute before, [00:40:40] Speaker 07: attempts were not actionable under the beneficiary clause. [00:40:43] Speaker 00: Right, the Congress used those specific words before. [00:40:46] Speaker 00: Right. [00:40:47] Speaker 00: And they used something different in the 2023 version. [00:40:52] Speaker 07: I have no idea why Congress used the words used because there's absolutely no legislative history on this point. [00:40:58] Speaker 07: And in other cases, like Belchi or ABCO music, there were House reports, statements in the congressional record, even words in the actual statute itself, not just a title. [00:41:11] Speaker 02: Does this start to get into the issue? [00:41:15] Speaker 02: Maybe Judge Johnstone and Judge Graper were asking similar questions about, well, what exactly is the standard? [00:41:19] Speaker 02: Because we have case law that says you don't actually do a land graph analysis [00:41:26] Speaker 02: If it's a clarifying amendment, and if that's true, then all we're truly debating is this clarifying or not. [00:41:32] Speaker 02: If LandGraph applies and you have to have some kind of, it has to be clear, then all of a sudden this debate about what is clarifying and what does update mean maybe becomes less relevant if it's just not clear. [00:41:46] Speaker 07: Well, I think you could look at Landgraf and you could look at what's retroactive. [00:41:52] Speaker 07: And the prong of retroactivity that would apply here would be, does it increase liability? [00:41:58] Speaker 07: And adding attempt to that beneficiary clause, cause of action, does increase liability. [00:42:04] Speaker 07: But I guess if you view it as, no, we're just clarifying what was there all along, I suppose you could say it does increase liability. [00:42:12] Speaker 07: But I don't think there's enough meat on the bones of what Congress did here with ATTRA to say that really is clarifying and that it really is clarifying what the pre-enactment [00:42:27] Speaker 07: provision was meant to say. [00:42:28] Speaker 07: In Bieber versus Tarsadio Hotels, this court actually said, Congress's, quote, Congress's decision to legislatively overrule earlier interpretations of a statute does not necessarily imply that these earlier interpretations were inconsistent with congressional intent at the time or even wrongly decided. [00:42:46] Speaker 07: That goes more to was Ratha 1 wrongly decided. [00:42:49] Speaker 07: But also none of the case law on clarifying legislation relied solely on the title. [00:42:55] Speaker 07: of the enactment, which is not part of the law itself. [00:43:00] Speaker 07: And you could review that title just like in the Rivers versus Roadway Express case. [00:43:04] Speaker 07: You could review this from now on, technical and clarifying update. [00:43:08] Speaker 10: But in Beaver, it seems like... [00:43:12] Speaker 10: that we held that enactments labeled to amend and clarify did not necessarily mean the enactment should apply retroactively where in that case there was no disagreement as to the statutes meaning before Congress amended it. [00:43:29] Speaker 10: I mean arguably here it seems like there may be disagreement when you look at Riccio and Rowe and Ratha. [00:43:38] Speaker 10: So I think that's distinguishable, isn't it? [00:43:42] Speaker 07: Your Honor, I would have to disagree with that, because I think that those prior cases did not address the specific issue Rother 1 did. [00:43:48] Speaker 07: Rother 1 was actually a case of first impression. [00:43:52] Speaker 07: But whether a person who knew or should have, a person who knowingly benefits from participation in a venture the person knew or should have known engaged in a violation, none of those other cases [00:44:07] Speaker 07: And any of them address that cause of action in the civil remedy provision. [00:44:13] Speaker 07: At most, Riccio is addressing perpetrators. [00:44:15] Speaker 07: Roe doesn't address. [00:44:16] Speaker 10: Well, that's if you agree that that's separate, right? [00:44:19] Speaker 10: Because I thought Riccio, again, the court there found that the defendant's hotel owners, I think the Patels, could be liable under the TVPRA for attempting to benefit from the TPR [00:44:37] Speaker 10: BPRA violations and the Fourth Circuit's decision in Roe held that the TBPRAs [00:44:48] Speaker 10: The current liability provisions, which provide liability for attempts to benefit from TVPRA violations were coextensive with the TVPRA's civil liability provisions. [00:44:59] Speaker 10: So it just seems like that creates, and I'm asking, doesn't that create sufficient ambiguity and judicial disagreement? [00:45:09] Speaker 07: I don't think it does, number one, on the first circus decision. [00:45:13] Speaker 07: And again, you've got to think back. [00:45:15] Speaker 07: This is a criminal statute that happens to have a civil remedy provision. [00:45:18] Speaker 07: Attempt is in a specific section of the TVPRA 1594A, but it is for the purpose of specifying you have the same punishment. [00:45:29] Speaker 07: You can get the same imprisonment and the same fine as a completed offense. [00:45:34] Speaker 07: And in the criminal world, you don't even have to separately [00:45:37] Speaker 07: pleaded or in an indictment attempt. [00:45:40] Speaker 07: It's just understood that you can prosecute someone for attempt. [00:45:43] Speaker 07: Civil, it's just an unknown kind of cause of action, an attempt. [00:45:48] Speaker 07: That's just not commonly seen at all. [00:45:50] Speaker 07: And in Riccia, the First Circuit stated, the defendants at the least attempted to violate [00:45:56] Speaker 07: Section 1589, without specifying what subsection, 1591, forced labor, harboring for forced labor, and sex trafficking. [00:46:05] Speaker 07: Quote, the necessary substantial steps, including the harboring of Riccio, the victim, and the receipt of benefit. [00:46:13] Speaker 07: So the attempt was an attempt to force services from the victim, not an attempt to benefit from the perpetrator, the sex trafficker's violation. [00:46:20] Speaker 07: That's how I would read that. [00:46:21] Speaker 07: You could read it differently, but that's how I read it. [00:46:24] Speaker 10: I do think RICO is not entirely clear in a model of clarity and is susceptible to multiple readings. [00:46:32] Speaker 10: But I think certainly one reading is that it recognized that the people there, again, the Patels could be liable for attempting to benefit from McLean's TVPRA violations. [00:46:47] Speaker 10: which to me I guess seems contrary to the conclusion reached in Ratha 1 that Rubicon could not be liable for its attempt to benefit from the company's TVPRA violations. [00:47:01] Speaker 07: Well, what I would say is if the plaintiffs had pled it differently, they may have a [00:47:10] Speaker 07: a much better argument on keeping the case alive as to Rubicon. [00:47:13] Speaker 07: If they had pled a Section 1589B violation and tried to prove, knowing in reckless disregard, that the venture had engaged in a violation, then you might be able to craft an argument that the attempt could be read into the 1589B violation against Rubicon as a perpetrator. [00:47:32] Speaker 08: Did they allege that Rubicon or Wales, I guess Wales isn't relevant anymore but that they were perpetrators, that they had either committed any of these offenses under the statute or that they attempted to commit the offenses? [00:47:48] Speaker 07: No. [00:47:49] Speaker 07: And I have the sections of the complaint here. [00:47:53] Speaker 07: Again, a separate count against Patana and SS Frozen which were the actual companies that employed the labor. [00:48:01] Speaker 07: And that starts out with plaintiffs or victims of peonage, forced labor, involuntary servitude, human trafficking, and they cite the statutory sections. [00:48:11] Speaker 07: And then you have count two against Rubicon and Wales. [00:48:15] Speaker 07: They again start out, plaintiffs or victims, because that is an element. [00:48:18] Speaker 07: You still have to be a victim. [00:48:20] Speaker 07: But then they go on, defendants Rubicon and Wales knowingly benefited from participation in a venture which defendants knew or should have known was engaged in peonage, forced labor, abolished servitude, unlawful conduct with respect to documents, and human trafficking. [00:48:34] Speaker 07: They received financial benefit as well as the benefit of a steady stream of imported shrimp and seafood for market from their participation in the venture. [00:48:41] Speaker 07: And, you know, once it was obvious from, I mean, they could have, if a temp was always cognizable under that beneficiary prong, they could have pled it. [00:48:51] Speaker 07: But once it was obvious from discovery that Rubicon had never sold any of the shrimp, they could have asked to amend the complaint, which they didn't do. [00:49:00] Speaker 04: Your pleading argument has some resonance to me with the additional fact and that was that this case was over. [00:49:08] Speaker 04: And then Congress comes along and even if you take the position of you're a friend, it's resurrecting [00:49:16] Speaker 04: a closed case and allowing them to, in effect, replede what they didn't plead before. [00:49:22] Speaker 04: Is that the way you look at it? [00:49:23] Speaker 07: I can kind of, yeah, and it does resonate. [00:49:25] Speaker 07: And in fact, this resonates a little bit with Long Bank Saul because there they wanted to combine, the Second Circuit was trying to combine [00:49:31] Speaker 07: the Rule 60B6 and the 15A for leave to amend your pleadings. [00:49:37] Speaker 07: And they said, that's a more relaxed standard. [00:49:39] Speaker 07: Let's put them together and we'll give you your chance. [00:49:41] Speaker 07: And it's almost like, what's going on here? [00:49:43] Speaker 07: They may want to replede if they got this case reopened, or as they asked Judge Walter in the district court, they wanted him to revisit summary judgment so he could take advantage of new case law. [00:49:53] Speaker 04: Could Congress say a case was a year old? [00:49:57] Speaker 04: and Congress passed a clarifying amendment, could that be resurrected and allow the parties to re-plead? [00:50:04] Speaker 07: I think it's going to depend on whether there is a final judgment and has the case. [00:50:07] Speaker 04: That was similar. [00:50:08] Speaker 07: Worked this all the way through the courts, everything's done. [00:50:11] Speaker 04: Everything's done. [00:50:11] Speaker 07: Supreme Court's done. [00:50:15] Speaker 07: I don't think you can [00:50:18] Speaker 07: I don't think the clarifying amendment can be viewed as a mandate, or a de facto mandate, to reopen the case, which is almost what plaintiffs are doing here. [00:50:26] Speaker 07: It's not like Plout versus Spendthrift forms, where the statute actually said dismissed cases will be reopened. [00:50:35] Speaker 07: This is more of an argument the plaintiffs are making that, well, we're going to use 60B6, and if you don't reopen it, you've abused your discretion. [00:50:43] Speaker 02: On that note, what do you make of the fact that the district court relied on the other two grounds that the court had offered when granting summary judgment? [00:50:55] Speaker 02: What is the import of that for our review? [00:50:58] Speaker 07: To me, it shows from his perspective, there's no abusive discretion. [00:51:03] Speaker 07: Regardless of how you decide the retroactivity issue, you could completely bypass it and not address that issue. [00:51:08] Speaker 07: He had independent grounds that were not disturbed. [00:51:11] Speaker 07: And the fact that this court didn't reach those grounds doesn't change the district court's perspective. [00:51:16] Speaker 07: It's in his discretion to say, you know, I'm going to rely on those grounds. [00:51:21] Speaker 07: Now, maybe he could say, you know what, I want to give him a second look. [00:51:26] Speaker 07: You still have the problem of retroactivity and final judgment. [00:51:34] Speaker 02: If you reverse the district court on this, do we need to then reach these other two grounds? [00:51:40] Speaker 02: No, I would say if you reverse the district court on this... There's a lot of argument about retroactivity. [00:51:47] Speaker 02: Let's say hypothetically you lose on that. [00:51:50] Speaker 02: But the district court gave some other reasons, which were not previously addressed in Ratha 1 or in the now vacated Ratha 2. [00:52:00] Speaker 02: But for this court to dispose of this appeal, do we now need to reach these other grounds in order to conclude that the district court abuses discretion? [00:52:10] Speaker 07: I don't think you can reach those grounds on a 60B6. [00:52:13] Speaker 07: You're not to review the underlying judgment. [00:52:16] Speaker 02: We're not reviewing that, but we're reviewing the district court's decision. [00:52:19] Speaker 02: The district court in the decision cited the prior decision. [00:52:24] Speaker 07: I think he's entitled to... Well, he cited his prior decision. [00:52:27] Speaker 07: He went back to his summary judgment. [00:52:32] Speaker 02: All you have to do on the other two grounds is look at did he have [00:52:43] Speaker 07: Did he exercise his discretion properly to rely on the grounds in his summary judgment ruling that were not reached by the Ninth Circuit in the prior appeal? [00:52:52] Speaker 07: That's all you have to do. [00:52:53] Speaker 07: Ms. [00:52:53] Speaker 07: Taylor. [00:52:53] Speaker 09: Council, once he incorporates his earlier ruling on summary judgment, why isn't that part of what we can and should review in reaching a decision? [00:53:08] Speaker 09: There is no case law saying you can do that. [00:53:11] Speaker 09: Is there case law saying that we can't? [00:53:13] Speaker 09: Because it's a very unusual thing to say I'm going back and reiterating what I said earlier on summary judgment. [00:53:22] Speaker 09: And my other question, you're getting short of time, but my other question is because the [00:53:30] Speaker 09: It sort of folds into the retroactivity question in the following way. [00:53:34] Speaker 09: Because the summary judgment could not and did not deal with attempt, it really didn't answer the question of whether there's evidence that could support an attempt because that wasn't considered. [00:53:53] Speaker 07: Well, Judge Walter did point out that's a novel theory. [00:53:57] Speaker 07: He didn't extensively address it, but he did address it as a novel theory. [00:54:02] Speaker 07: He addressed it in the summary judgment, is what you're saying? [00:54:09] Speaker 10: Yeah, he did. [00:54:11] Speaker 10: He did. [00:54:12] Speaker 10: It seems like appellate courts can, in our discretion, review [00:54:18] Speaker 10: or decide the merits of a Rule 60B motion in the first instance on appeal. [00:54:23] Speaker 10: That's the Phelps versus Alameda. [00:54:25] Speaker 10: I'm trying to figure out why we wouldn't be able to do that if we got to that point. [00:54:33] Speaker 07: Under the 60B6 standard, though, which is abuse of discretion, you have to look at this from the district court's perspective. [00:54:41] Speaker 07: This is not like a de novo or error that he erred. [00:54:45] Speaker 07: Or it's not a situation where one court might have made an exercise of discretion. [00:54:49] Speaker 10: That he committed legal error. [00:54:50] Speaker 10: We would have to look at it to see whether he committed legal error. [00:54:54] Speaker 07: But that's not why you're here. [00:54:56] Speaker 07: You're not here to find out if he made a legal error on the summary judgment. [00:55:00] Speaker 07: You're here to find out did he make a [00:55:02] Speaker 07: that he abused his discretion in how he addressed the 60B6. [00:55:06] Speaker 07: And if he used the wrong standard on the 60B6, if he did what the Second Circuit did, right, combining two different standards saying, okay, we're going to grant, we think you should have granted the motion, that would be a legal error of the kind that you could address here. [00:55:19] Speaker 07: But it wasn't... Well, let's say the facts were contrary to what he... [00:55:25] Speaker 10: what he said. [00:55:26] Speaker 07: That's an error. [00:55:27] Speaker 07: Well, the plaintiffs could have brought a 60B1, but that has to be done within one year. [00:55:31] Speaker 07: And in Blombang Sol, just as Thomas cautioned, you can't use 60B6 to get around that time bar. [00:55:38] Speaker 07: If they had thought that he made a legal error on other grounds [00:55:43] Speaker 07: Yeah, it is a situation. [00:55:46] Speaker 07: I don't think in a year they would have known what this court would have decided to rule on and rot the one. [00:55:52] Speaker 07: But if they thought there was a legal error made on the summary judgment ruling, they had a year. [00:55:58] Speaker 07: And again, it's discretionary, so I understand they weren't guaranteed that he would re-look at that, but they could. [00:56:04] Speaker 07: They could have pointed out to him new case law that might have caused him to rethink what he did, but they didn't do that. [00:56:10] Speaker 07: Another thing is that the plaintiffs certainly, if they thought attempt was always cognizable under the beneficiary clause, they could have brought a petition for cert on that point. [00:56:19] Speaker 07: If there really was a conflict in the circuits, that's perfect grounds to go to the Supreme Court. [00:56:24] Speaker 07: And they did on the other two defendants, Batana and S.S. [00:56:27] Speaker 07: Frozen, on the extraterritorial jurisdiction point. [00:56:30] Speaker 07: They asked for more time, they got an extension, and then they filed their petition, but they didn't. [00:56:34] Speaker 07: They stout on this. [00:56:36] Speaker 07: So that's another small point why I don't think the law previously extended to the attempts. [00:56:43] Speaker 07: This is new, but it would apply to potentially pending cases if it was clarifying, but not to a case that's already had a final judgment and gone all the way up through the court system. [00:56:53] Speaker 04: And I take it under Landgraf you feel they have no chance. [00:56:57] Speaker 07: I, yeah, I feel they have no chance. [00:56:59] Speaker 07: There's no express statement that is meant to be retroactive. [00:57:04] Speaker 07: I mean, there's, there's, there's, you know. [00:57:06] Speaker 09: Well, Minecraft has a second step, though. [00:57:08] Speaker 09: If there's no express retroactivity, congressional intent can be shown clearly by other factors, correct? [00:57:18] Speaker 01: What if we had legislative history, for example, that showed that these plaintiffs had gone to Congress and lobbied immediately after cert was denied? [00:57:27] Speaker 01: and said, clarify this. [00:57:30] Speaker 01: And Congress did so. [00:57:31] Speaker 07: They have to do more than just clarify, because I think Rivers v. Roadway Express, as I've cited before, by 511 US 298, argued with Landgraf and cited in the majority opinion in Ratha 2. [00:57:44] Speaker 07: Just because Congress is clarifying something doesn't necessarily mean it's meant to be retroactive. [00:57:48] Speaker 07: You could clarify for future cases, this is what the law means. [00:57:53] Speaker 07: for pending cases. [00:57:55] Speaker 07: This is what the law means. [00:57:57] Speaker 07: But it doesn't necessarily mean you're going to go back retrospectively and capture cases that are closed and no longer pending. [00:58:07] Speaker 01: The timing may or may not be a clear statement of Congress, but isn't it a little suspicious? [00:58:12] Speaker 07: I'm sure they were unhappy with the result. [00:58:15] Speaker 07: But that doesn't necessarily mean, I mean, going forward, everyone gets the benefit of the new law with the attempt to be recognizable. [00:58:23] Speaker 07: But going back, it has to be, I think, much, much clearer. [00:58:25] Speaker 07: I mean, we cited plenty of cases where there are specific statements about whether it's to reach prior case law, pending case, prior cases, pending cases, that kind of thing. [00:58:34] Speaker 07: There's nothing, there's nothing at all in here but the title that it happened after. [00:58:38] Speaker 06: That would be step two of Landgraf out of Landgraf, right, because Landgraf [00:58:42] Speaker 06: specifically contemplate situations in which Congress will not explicitly state that a new amendment or law is retroactive. [00:58:51] Speaker 07: Again, I think you would look to House and Senate reports, statements in the Congressional record. [00:58:58] Speaker 07: statements in the law itself, you could look, are there actual conflicts on this specific point? [00:59:04] Speaker 07: Not other readings of other parts of the statute and statements made that you might want to extrapolate to this particular provision, but are there actual conflicts? [00:59:13] Speaker 07: And again, you know, it's very dangerous to look at a Congress 15 years later and have it decide what a Congress 15 years before meant in a statute that didn't have any statement whatsoever regarding whether attempts were recognizable under the beneficiary provision. [00:59:28] Speaker 04: Then we have what Justice Scalia used to say that history is bunk, basically. [00:59:32] Speaker 04: We don't know what Congress means or what it means, right? [00:59:35] Speaker 07: Well, it's the judiciary's role to decide what the law means. [00:59:40] Speaker 07: Right. [00:59:40] Speaker 07: And Congress can say you got it wrong, but it can't change the results that you have already finally adjudicated. [00:59:46] Speaker 04: But you have to say there's no way to determine what Congress intended. [00:59:50] Speaker 07: Is that anything here? [00:59:51] Speaker 07: There's no way. [00:59:52] Speaker 07: Well, if they're explicit, if they're explicit. [00:59:55] Speaker 04: Senator, staff member, a report? [00:59:59] Speaker 07: You can look, and even in the law itself, I think in Landgraf itself, [01:00:05] Speaker 07: There is a statement regarding a prior provision of the civil rights statute that was amended where Congress actually said regarding, and it wasn't passed, so it wasn't ever passed. [01:00:16] Speaker 07: And it may not have been constitutional, but where Congress actually said regarding final judgments, they shall be vacated under Rule 60B6 if just as so requires and you're considering due process of law. [01:00:31] Speaker 07: Okay, so that's what Congress intended there. [01:00:33] Speaker 07: That's a pretty broad statement in the law itself. [01:00:36] Speaker 07: Now, that may not have passed muster under Plout versus Spencer Farms, which is like a year later. [01:00:41] Speaker 07: Thank you. [01:00:42] Speaker 07: Council, did you have one more question? [01:00:44] Speaker 06: Yeah, one thing that concerns me throughout the arguments is the conflation between Congress's intent to clarify or whether an amendment is clarifying and whether Congress intends an amendment [01:01:00] Speaker 06: to be retroactive. [01:01:02] Speaker 06: And my point is, an amendment could be a change, right, but if Congress intends it to be retroactive, it doesn't matter whether it was clarifying or not. [01:01:14] Speaker 06: Is that correct? [01:01:15] Speaker 06: Under Landgraf. [01:01:18] Speaker 06: Landgraf had nothing to do with whether a new law was clarifying or not. [01:01:23] Speaker 06: It just said Congress can intend a new law to be retroactive [01:01:28] Speaker 06: and it can do so explicitly or it can do so impliedly, correct? [01:01:33] Speaker 06: Is that correct? [01:01:35] Speaker 06: Whether it's clarifying or not. [01:01:39] Speaker 06: I don't know about impliedly what that means. [01:01:42] Speaker 06: If it's not explicit, we go to step two and we look at a whole bunch of other stuff to determine whether its intent is clear despite the lack of an explicit statement that it's going to be applied. [01:01:53] Speaker 07: Although Landgraf carved out three types [01:01:57] Speaker 07: statutes that wouldn't be retroactive, just meaning it increases liability, it diminishes your rights, whatever. [01:02:05] Speaker 07: It was the prospective jurisdictional and procedural. [01:02:07] Speaker 06: So Congress could, if it wanted to, make completely new liability retroactive. [01:02:12] Speaker 06: Of course it could. [01:02:13] Speaker 06: There would be constitutional limitations to that, but it can. [01:02:16] Speaker 07: Yes, but Langer said nothing about clarifying. [01:02:18] Speaker 07: It didn't carve out that support. [01:02:19] Speaker 06: So the two issues are related, but not necessarily determinative of the other. [01:02:26] Speaker 06: I think that's a good point. [01:02:35] Speaker 06: If Congress is not [01:02:43] Speaker 06: in theory, to agree with you that the Atro amendment was not clarifying, we would still have to address the question of whether Congress intended it to be retroactive. [01:02:56] Speaker 06: Is that right? [01:02:57] Speaker 07: Even if it wasn't clarifying, it's changing the law, and you'd have to look for either an express statement by Congress that was meant to reach pre-enactment conduct, or if you don't see that, and it does increase in our case liability, [01:03:13] Speaker 07: If there's no express statement, you have to, is there a clear indication of what congressional intent was? [01:03:19] Speaker 07: Thank you. [01:03:21] Speaker 07: Thank you. [01:03:22] Speaker 07: Okay, thank you. [01:03:29] Speaker 11: If I might I'd like to first address the pleading issue because we did plead 1589 B We pled it in count 2 in paragraphs 95 96 and 97 of our complaint where we expressly pled that the defendants knew that the workers at the factories were victims of Deceptive recruitment passport confiscation and coercive recruitment. [01:03:49] Speaker 04: You're saying you pled attempt [01:03:51] Speaker 11: We pled all the elements of attempt, which are that you intend to commit the conduct, and you take a substantial step towards it. [01:03:58] Speaker 11: And we pled those. [01:03:59] Speaker 11: And it's 95, 96, and 97. [01:04:01] Speaker 11: For example, in 96, we said that knowing that the shrimp and seafood was produced with forced labor, the US defendants provided a market and worked to expand that market. [01:04:11] Speaker 11: And they did so knowing the conduct would continue benefiting from it and intending to benefit from it, which are the elements of attempt liability in this circuit. [01:04:18] Speaker 11: We also pled in 97 that the U.S. [01:04:21] Speaker 11: defendants willingly accepted the risk in order to benefit and profit from the common venture, which is reckless. [01:04:30] Speaker 11: But if I could just, I'm sorry, just one more thing on the pleading. [01:04:33] Speaker 11: We also briefed 1589B in every filing that we made with the court, including in the original motion to dismiss. [01:04:39] Speaker 11: that 1589B requires partitions of the patient in a venture knowing or in reckless disregard and that we had the facts for reckless disregard and that we also did that in the summary judgment briefing and the appeal briefing. [01:04:53] Speaker 11: And I'm sorry, I just thought there was such a lot of discussion over, I didn't mean to cut you off, I apologize. [01:04:58] Speaker 11: I just, there was such a lot of discussion over the plating. [01:05:00] Speaker 11: I didn't want to. [01:05:01] Speaker 08: We're really running out of time. [01:05:02] Speaker 08: Yeah. [01:05:02] Speaker 08: So I have a question. [01:05:03] Speaker 08: Completely different question for you of course even if we completely agreed with you decided to retroactive all of these things Plaintiff Ratha himself has no claim right because he didn't work for Fathana. [01:05:15] Speaker 08: He worked for SF frozen Correct plaintiff Ratha either way his claim is concluded aim is not [01:05:25] Speaker 08: And then I know this is a weird thing to ask you, but I just scoured through page 1171. [01:05:30] Speaker 08: I didn't find the language you're talking about. [01:05:32] Speaker 08: I'll give you my copy. [01:05:32] Speaker 08: Can I borrow your copy for a moment? [01:05:34] Speaker 03: Of course. [01:05:34] Speaker 08: And then if I see where it is, I can give it back to you. [01:05:39] Speaker 11: I've got it yellow and highlight. [01:05:41] Speaker 08: Thank you. [01:05:42] Speaker 08: Thanks. [01:05:44] Speaker 01: Council if you prevail on the retroactivity point We remand assuming we don't reach the well I guess I'll first ask are you asking us to reach and resolve the 60 be alternative grounds are you asking us to address the error in summary judgment and [01:06:03] Speaker 11: That would obviously be the best for us, yes. [01:06:05] Speaker 01: Okay, okay. [01:06:06] Speaker 01: It's just that we don't have a ton of briefing on that particular point, and we're looking at de novo review of summary judgment. [01:06:13] Speaker 01: Now assume it's a split verdict where you win on the retroactivity, but we remand for a 6GB. [01:06:22] Speaker 01: What should happen then? [01:06:24] Speaker 11: I guess it would be up to the district court to revisit those two issues. [01:06:29] Speaker 11: I mean, I think for the participation in adventure, there isn't that much work to be done because that's a clear error of law. [01:06:34] Speaker 11: No court in the entire United States has used his definition. [01:06:38] Speaker 11: We propose the dictionary definition, which is the definition that the courts are settling on. [01:06:43] Speaker 11: I think that is a reasonable choice. [01:06:44] Speaker 11: That's the definition that Judge Rao for the DC Circuit adopted. [01:06:47] Speaker 11: That seems to be a common sense place to look for the definition of participation in adventure. [01:06:53] Speaker 11: His definition is idiosynchronic, no one has followed it. [01:06:56] Speaker 02: Does that have anything to do with the ATRA, or is it just a completely different, separate argument? [01:07:01] Speaker 11: I think that is what... So that's one of the summary judgements. [01:07:06] Speaker 01: What else do you ask the district court to do? [01:07:08] Speaker 11: Is that he found that there was that we had insufficient evidence of knowledge, but he failed to bifurcate the knowledge analysis during it and didn't look at the time period during the attempts. [01:07:18] Speaker 01: Okay. [01:07:18] Speaker 01: And those are the 2 summary judges. [01:07:20] Speaker 01: What do you ask the district? [01:07:21] Speaker 01: What does the district judge do with respect to? [01:07:24] Speaker 01: the retroactivity decision. [01:07:26] Speaker 01: Does the district judge then reweigh whether our holding with respect to retroactivity was a clear and authoritative change? [01:07:36] Speaker 01: Is the district court compelled at that point, if we find it retroactive, to reopen, to allow you to litigate your attempt claims? [01:07:47] Speaker 11: I think if you find that it's retroactive, then district court would be bound by that decision, and maybe I'm just misunderstanding your question. [01:07:55] Speaker 08: But they're still the issue of participating knowingly. [01:07:59] Speaker 08: I mean, there's still other elements. [01:08:00] Speaker 01: Well, but so in other words, if it's retroactive, if we find that it's retroactive, it is always and therefore it's required that the district court reopen. [01:08:10] Speaker 01: It would always be an abuse of discretion and legal error for district court not to reopen when confronted with a retroactive statute that has been enacted after a case is closed. [01:08:22] Speaker 11: So no, right? [01:08:23] Speaker 11: I mean, it just happens in this case, he rested on legal errors. [01:08:27] Speaker 11: If he had ruled, you know, if he said we weren't diligent or there was reliance, I mean, there are other ways he could have, it's a balancing test with, you know, flexible factors. [01:08:36] Speaker 01: If everything else is met, the district court is required to reopen if we find retroactivity. [01:08:42] Speaker 11: Well, he actually already found that the other factors of the Phelps test weighed in our favor. [01:08:47] Speaker 11: I don't think this runs afoul of Plout because he has the, you know, Plout says that's why the Congress can't say, like, you have to reopen the specific case. [01:08:56] Speaker 11: But as it happens under the facts of this case, because he rested on legal errors, I think [01:09:00] Speaker 11: and that he found that other plout factors weighed in our favor. [01:09:04] Speaker 11: And so then, yeah, then what's left is to reopen. [01:09:08] Speaker 02: So if you win on the retroactivity and it goes back to the district court, would the district court be permitted to say, well, I also relied on my other two grounds from the summary judgment order, and so I deny 60B relief? [01:09:25] Speaker 11: I think it would depend on what your order is said. [01:09:29] Speaker 11: Yes, I mean, I think if you found it was retroactive and that the other two grounds were error, which is what we're asking the panel to do, then he would be bound by that. [01:09:38] Speaker 04: Are you asking that? [01:09:39] Speaker 04: What? [01:09:40] Speaker 04: You are asking us to do that? [01:09:41] Speaker 04: I thought you didn't have an answer for that. [01:09:43] Speaker 04: No, no, that is what we're asking. [01:09:44] Speaker 04: You were asked several times about these other two points. [01:09:47] Speaker 04: Oh, I'm sorry. [01:09:48] Speaker 04: You're saying that we should decide [01:09:52] Speaker 04: whether the district court erred on the other two grounds? [01:09:55] Speaker 10: That's correct, Your Honor. [01:09:56] Speaker 10: Wow, okay. [01:09:59] Speaker 10: Either we would decide or send it back to the district court if we found that they were legal error. [01:10:06] Speaker 10: Based on legal error, okay. [01:10:07] Speaker 10: All right, thank you so much. [01:10:10] Speaker 10: Thank you both. [01:10:11] Speaker 10: Ms. [01:10:12] Speaker 10: Frischman? [01:10:13] Speaker 11: Frischman, thank you very much. [01:10:15] Speaker 10: And Ms. [01:10:15] Speaker 10: Taylor, we appreciate the oral argument presentations here today. [01:10:19] Speaker 10: The case of Keough Rotham versus Rubicon Resources LLC is now submitted. [01:10:25] Speaker 10: We are adjourned, thank you.