[00:00:01] Speaker 03: Total boomer thing to do. [00:00:02] Speaker 03: Okay. [00:00:02] Speaker 03: Well, thanks for joining us via zoom today. [00:00:05] Speaker 03: We appreciate the opportunity to do it this way. [00:00:09] Speaker 03: Judge email and I are probably in Denver. [00:00:11] Speaker 03: Judge Morris is probably in Kansas. [00:00:13] Speaker 03: Don't know where counsel are. [00:00:15] Speaker 03: Hope is someplace nice and we are going to. [00:00:20] Speaker 03: have 15 minutes per side, as the court criers indicated, and then we'll adjourn. [00:00:26] Speaker 03: So today's case is 22-4117, fibro-biodigester versus Murphy Brown. [00:00:32] Speaker 03: And for the appellant, Mr. Moritzon, you may proceed. [00:00:40] Speaker 02: Thank you. [00:00:40] Speaker 02: Good morning, Your Honors. [00:00:41] Speaker 02: Alan Moritzon on behalf of fibro-biodigester. [00:00:46] Speaker 02: I will aim to reserve three or four minutes for rebuttal. [00:00:51] Speaker 02: The district court assumed that the ARMSA was a requirements contract. [00:00:55] Speaker 02: It assumed that the manure at the heart of the ARMSA was a unique good. [00:01:00] Speaker 02: And it assumed that FIBRO would not be able to cover for the loss of that good. [00:01:07] Speaker 02: It nonetheless held that there was no irreparable harm here and it abused its discretion in doing so. [00:01:15] Speaker 02: Before I delve further into the merits, though, I would like to take a few minutes and explain why this appeal is neither constitutionally nor prudentially moot. [00:01:26] Speaker 02: Constitutional mootness imposes a high bar. [00:01:29] Speaker 02: It requires the court to conclude that it is impossible to grant relief [00:01:35] Speaker 02: that would have a real world effect to the parties. [00:01:41] Speaker 02: Murphy Brown has not carried its heavy burden to make that showing here. [00:01:47] Speaker 02: According to paragraph five of Mr. Webb's declaration, Murphy Brown continues to own the complexes, continues to hold sows, boars, and piglets at the complexes. [00:02:00] Speaker 02: And it is our understanding that Murphy Brown transports [00:02:04] Speaker 02: piglets and finishers all across the country. [00:02:09] Speaker 04: Are they holding anything like the volume of piglets that are required that were held before they kind of shut down that proceeding? [00:02:21] Speaker 02: It is our understanding that there are about 40,000 sows still at the complexes. [00:02:29] Speaker 02: We don't know, to be honest. [00:02:32] Speaker 04: You mean the facilities that would have served the pipeline that would have accommodated Fibro's business? [00:02:41] Speaker 04: You say there's 40,000 sows still there. [00:02:46] Speaker 02: And I just want to be clear about this. [00:02:49] Speaker 02: There are 40,000 sows, it's our understanding, there are 40,000 sows at the sow barns, not at the finisher barns. [00:02:56] Speaker 04: Right. [00:02:56] Speaker 04: And it was the finishing barns that had the pipeline to it. [00:03:00] Speaker 04: That's right. [00:03:01] Speaker 02: That's right. [00:03:02] Speaker 02: We are asking. [00:03:03] Speaker 04: Are there any sows at that finishing barn? [00:03:08] Speaker 02: Well, no, there wouldn't be sows at the finisher barns because they're not finishers. [00:03:12] Speaker 02: They're sows. [00:03:13] Speaker 04: Yeah. [00:03:14] Speaker 02: And so, but there are, it is our understanding that there are piglets being held at the finisher barns before they are being transported to Nebraska. [00:03:23] Speaker 02: Okay. [00:03:25] Speaker 04: Go ahead, proceed with your argument. [00:03:28] Speaker 04: Thank you. [00:03:28] Speaker 02: No, our only point is that the district court assumed for purposes of its ruling that it would be requiring Murphy Brown to take affirmative steps to have finishers at the finisher barns. [00:03:46] Speaker 02: And so that is the posture that we are before this court that [00:03:52] Speaker 02: Murphy Brown is going to have to take steps. [00:03:55] Speaker 02: They're going to have to inseminate sows. [00:03:57] Speaker 02: They're going to have to enter contracts with farmers. [00:04:00] Speaker 02: They're going to have to replenish, in the district court's words, replenish the finisher barns. [00:04:06] Speaker 02: And all of that remains live. [00:04:09] Speaker 02: That is a live issue before this court. [00:04:12] Speaker 02: According to the most recent scheduling order, we're no closer than [00:04:16] Speaker 02: 16 to 18 months to trial in this case, and that assumes no extensions. [00:04:21] Speaker 02: And given Murphy Brown's resources and common practices, there's no reason to believe that they can't repopulate the finisher barns in short order. [00:04:31] Speaker 03: If we reverse and the district court orders the replenishment of the finisher pigs, what's your response to the argument that [00:04:45] Speaker 03: Murphy Brown lost its purchaser, California purchaser, and therefore its business model has been disrupted because it doesn't have the same customer support to sell its product, the meat product, the pig product, as opposed to the waste product. [00:05:05] Speaker 03: What's an injunction going to do if there's not a reliable purchaser of the finisher pigs? [00:05:13] Speaker 02: Well, we, we don't know that that's the case. [00:05:16] Speaker 02: I mean, we know that that's what Murphy Brown represented, but. [00:05:20] Speaker 02: If we, I assume you're talking about the balance of the equities that that inquiry isn't relevant to any other factor. [00:05:29] Speaker 02: But they are parties to a 20 year requirements contract. [00:05:35] Speaker 02: And. [00:05:37] Speaker 02: To the extent the court agrees with us that the district court abused its discretion on the uniqueness factors and the inability to cover the irreparable harm analysis. [00:05:50] Speaker 02: We will have been irreparably harmed if they are allowed to to shut down. [00:05:55] Speaker 02: And they will have suffered some level of damages that they might be able to prove. [00:06:02] Speaker 02: But in terms of the balance of the equities, irreparable harm always outweighs monetary damages. [00:06:11] Speaker 04: What does the record reflect about your irreparable harm? [00:06:14] Speaker 04: You're a big company. [00:06:18] Speaker 04: Why does the record negate the possibility that after 18 months in a trial that you would have the resources to restart if you could get the supplies? [00:06:32] Speaker 02: Well, first of all, I don't know that I would necessarily characterize us as a big company. [00:06:39] Speaker 02: I think my only point is preliminary injunction requires four factors. [00:06:44] Speaker 02: The showing of irreparable harm is [00:06:46] Speaker 02: that we are being denied a unique good. [00:06:50] Speaker 02: And a unique good, by definition, is irreplaceable. [00:06:53] Speaker 02: You can't quantify its value. [00:06:56] Speaker 02: And that's what the district court assumed about the manure that we were being deprived of here. [00:07:02] Speaker 02: And so if we're being deprived of a unique good that you cannot value, every day that passes, we are suffering irreparable harm. [00:07:10] Speaker 02: And we will suffer irreparable harm every day between now and the start of trial. [00:07:14] Speaker 02: And so that's what the record shows. [00:07:17] Speaker 02: That's what the district court assumed. [00:07:20] Speaker 02: The district court also. [00:07:22] Speaker 03: Go ahead, Judge Moritz. [00:07:24] Speaker 00: Oh, OK. [00:07:26] Speaker 00: I was just going to say, I mean, the district court did assume it was a unique good and also assumed that you couldn't cover. [00:07:32] Speaker 00: But the court said that wasn't sufficient to show irreparable harm. [00:07:37] Speaker 00: And it pointed out that you have plenty of data here. [00:07:43] Speaker 00: accumulated data from which to determine your loss should you need to do that. [00:07:50] Speaker 00: I don't understand why the simple fact of the unique good prevents you or the fact that you can't cover at this point prevents you from still being able to calculate a loss, which is really what the district court came down to here. [00:08:10] Speaker 00: Monetary loss is calculable based on your own records. [00:08:16] Speaker 02: Here's the problem with that analysis. [00:08:19] Speaker 02: Under the UCC, there are two components of damages. [00:08:23] Speaker 02: We're entitled to the lost value of the good in addition to whatever profits or lost revenue or other consequential damages we're entitled to. [00:08:35] Speaker 02: And so the district court said, well, you have your historical performance that shows your lost profits over the course of four or five years, but there's no discussion of the lost value of the good, the manure itself. [00:08:51] Speaker 02: And that's bedrock UCC principles that say under 712 and 713, you get to go purchase a substitute good on the market and you get to recover the difference between the value of what you purchase as a substitute and the good that's not being deprived. [00:09:12] Speaker 02: The other problem with so important. [00:09:15] Speaker 04: Let me ask you a quick question. [00:09:16] Speaker 04: You said there's two, there's the loss of the unique good plus consequential damages. [00:09:21] Speaker 04: But does the contract allow you to, uh, to claim consequential damages? [00:09:27] Speaker 02: No, and that only strengthens our point. [00:09:30] Speaker 04: The contract concludes that, right? [00:09:32] Speaker 04: It says no consequential damages. [00:09:34] Speaker 02: The contract says no consequential damages. [00:09:36] Speaker 02: So literally our only remedy here. [00:09:40] Speaker 02: is to be able to try and recover our cover damages or our market price differential damages, the difference between the value of the manure on the market and the value of the manure as we were paying for it. [00:09:53] Speaker 02: And the problem is that the court said, you can't acquire substitute manure. [00:09:59] Speaker 02: There's no market for that manure. [00:10:00] Speaker 02: That's the assumption when he says it's a unique good, you cannot cover. [00:10:06] Speaker 02: Well, then how are we supposed to recover our damages? [00:10:09] Speaker 00: By looking to your past history of what your profits were when there was the full 450,000 hogs in the facility. [00:10:21] Speaker 02: Two responses, Judge Moritz. [00:10:22] Speaker 02: One, the contract precludes us from recovering those profits. [00:10:27] Speaker 02: And 2, those are different than our cover damages. [00:10:31] Speaker 02: The UCC is clear. [00:10:33] Speaker 02: We get our cover damages. [00:10:35] Speaker 02: The difference between the value of the good on the market and what we were paying for that has nothing to do with profit. [00:10:42] Speaker 02: It's just an input. [00:10:44] Speaker 00: Right? [00:10:44] Speaker 02: It's an input for the way we're operating our business. [00:10:48] Speaker 02: The UCC says the default is you can also recover your consequential damages. [00:10:53] Speaker 02: Here we can't recover our consequential damages because they're barred. [00:10:58] Speaker 02: So our historical performance shows nothing about the value of the manure on the market, which is the way the UCC measures our direct damages. [00:11:08] Speaker 02: And so Judge Shelby just skipped over this analysis. [00:11:13] Speaker 02: He said, yes, it's unique. [00:11:15] Speaker 02: Yes, you cannot cover. [00:11:17] Speaker 02: Yes, it's a long-term requirements contract. [00:11:20] Speaker 02: And yet, despite all that, I'm going to rely on these other provisions of the contract and the idea that you can calculate your damages. [00:11:28] Speaker 02: And that's why we think it was such an error [00:11:32] Speaker 02: for the court to say it's a straightforward calculation of your damages, while at the same time suggesting that the manure was irreplaceable because it was unique. [00:11:41] Speaker 02: Well, we get the value of that manure. [00:11:43] Speaker 02: That's our bedrock remedy under the UCC. [00:11:47] Speaker 02: The only other thing the District Court said is that the arms set itself weighed against specific performance. [00:11:55] Speaker 02: And for the reasons we laid out in our brief, we just don't think that's a plausible reading of the arms set. [00:12:00] Speaker 02: There is no provision in the arms set that suggests that the parties meant to take specific performance off the table. [00:12:07] Speaker 02: To the contrary, 1333 expressly anticipates that either party is going to be able to come into court [00:12:16] Speaker 02: and seek an equitable remedy. [00:12:18] Speaker 04: May I ask you a quick question? [00:12:19] Speaker 04: I'm sorry to interrupt at this point, but it's real important to me. [00:12:23] Speaker 04: Under the UCC, as adopted by Utah, 78-7082, loss profits can be the basis for damages if you are the seller. [00:12:37] Speaker 04: but there's no comparable provision if the plaintiff is the buyer. [00:12:44] Speaker 04: Do you have any explanation for why the UCC made that distinction between buyers and sellers? [00:12:51] Speaker 02: I apologize Judge Ebell. [00:12:55] Speaker 02: I actually think [00:12:57] Speaker 02: And I might have to double check the citation, but I actually think 715 may authorize the buyer to receive, it doesn't say lost profits, but I believe it does say incidental and consequential damages, which I would argue lost profits falls within. [00:13:19] Speaker 02: But of course here, we're precluded from recovering [00:13:23] Speaker 02: Those under the terms of the arm set and and I endeavor to reserve the rest of my time for rebuttal if that's okay. [00:13:30] Speaker 03: All right, may council. [00:13:33] Speaker 03: Let's hear from Mr path when you're ready. [00:13:38] Speaker 01: Thank you, your honors. [00:13:40] Speaker 01: May it please the court? [00:13:41] Speaker 01: I would like to begin, I think, talking about, because I do think it matters, I'd like to begin talking about Prudential and Article III mootness. [00:13:51] Speaker 01: And I'm going to talk very briefly about the District Court's standard review here and the District Court's analysis of the standard review for preliminary injunction. [00:14:00] Speaker 01: And then I'll touch on the District Court's analysis of irreparable harm and the balance of the harms. [00:14:06] Speaker 01: I want to start by going back to the Caddo case. [00:14:09] Speaker 01: Obviously, the court's very familiar with that case, but just to touch on the facts of that case, I think it's relevant for our argument here today. [00:14:17] Speaker 01: The Wichita tribe was, as you know, building a history center on its own land. [00:14:22] Speaker 01: The Caddo Nation filed suit under the NHPA and NEPA alleging that the building could be on lands with ancestral remains. [00:14:31] Speaker 01: and they sought a TRO to prevent construction. [00:14:34] Speaker 01: That was the sole remedy they requested at the district court level, that was denied. [00:14:38] Speaker 01: It was an appeal that they appealed the TRO to the 10th Circuit, but did not seek any other relief below. [00:14:45] Speaker 01: One year later, the history center was finished and the appeal of the TRO was considered by the 10th Circuit. [00:14:53] Speaker 01: The analysis by the 10th Circuit in Caddo [00:14:57] Speaker 01: carefully explained why the tribes appealed the preliminary injunction was moot. [00:15:01] Speaker 01: Specifically, the only relief sought in the TRO was to enjoin construction of the history center. [00:15:08] Speaker 01: To avoid the mootness argument, Cato Nation argued that it could still seek [00:15:14] Speaker 01: quote, to enjoin the history center's use to the extent it might disturb ancestral remains in the area. [00:15:21] Speaker 01: In other words, they were still trying to focus on their ultimate goal, but they had shifted the type of relief they were requesting. [00:15:28] Speaker 01: But the Caddo Court pointed out that this relief was not sought in the TRO. [00:15:33] Speaker 01: And the court said, we thus constrain our analysis to the relief the Caddo Nation sought below, a temporary restraining order on construction of the history center. [00:15:43] Speaker 01: The court concluded saying this relief is now impossible and dismissed the appeal on mootness grounds. [00:15:52] Speaker 01: The court rejected Cato Nation's request to, quote, expand the request for injunctive relief to fashion a remedy. [00:16:01] Speaker 01: This case sits squarely within Cato's reasoning and holding. [00:16:06] Speaker 01: In our case, the district court's order explicitly recognizes that Fibro's request sought an order to either maintain a hog population or prevent depopulation, period. [00:16:21] Speaker 01: In other words, the record before this court, there's no question that Fibro sought only to maintain a population of approximately 400,000 finisher hogs at Murphy Brown's facility. [00:16:34] Speaker 01: that's the scope of the injunctive belief below. [00:16:36] Speaker 01: There are now no finisher hogs at Murphy Brown's complex, and Murphy Brown logically cannot be ordered to maintain a population of hogs that doesn't exist. [00:16:47] Speaker 01: That's just a factual reality. [00:16:50] Speaker 03: Why can't we construe, I mean, they could replenish the hogs [00:16:58] Speaker 03: Why isn't that fairly contained within the maintenance option? [00:17:05] Speaker 03: Assuming there had been an injunction for 400,000 hogs, when it went below 400,000, I guess the court could order some type of relief to replenish the delta between what the actual and what the target number was. [00:17:20] Speaker 03: Why isn't that fairly encompassed within the request of relief? [00:17:25] Speaker 01: It's a fair question, Your Honor. [00:17:27] Speaker 01: Let me address it this way. [00:17:28] Speaker 01: Let me, from a purely factual standpoint, Murphy Brown could rehire the hundreds of employees, begin to start re-inseminating sows, try to locate new contracts to supply those. [00:17:43] Speaker 01: It would require an enormous factual lift. [00:17:46] Speaker 01: And but it's not factually impossible to do that the issue from a simply from a legal standpoint is that's not the relief that was requested and temporarily that time period has passed in fact that time period effectively had passed. [00:18:02] Speaker 01: by the end of December after the preliminary injunction was denied. [00:18:08] Speaker 04: The appellant said that there were still hogs there at the facility. [00:18:14] Speaker 04: What does the record show about whether that's true, and if so, how many? [00:18:18] Speaker 01: My understanding, Your Honor, is there are approximately 30,000, mostly sows, [00:18:24] Speaker 01: And there are approximately 200 to 300 hogs and or piglets. [00:18:30] Speaker 01: That's my understanding of the factual state of play. [00:18:34] Speaker 04: Is that the record before us? [00:18:35] Speaker 04: I mean, we can't cite your understanding. [00:18:38] Speaker 04: We have to cite things from the record. [00:18:39] Speaker 04: Is that in the record? [00:18:41] Speaker 01: I believe that's in the record, Your Honor. [00:18:43] Speaker 01: I can't point to that site immediately. [00:18:45] Speaker 01: If it's in the briefing, it would be referenced to the record. [00:18:48] Speaker 01: Thank you. [00:18:49] Speaker 01: So back to your question. [00:18:50] Speaker 00: Why isn't it clear that what they're seeking is a mandatory injunction, as the district court said. [00:18:55] Speaker 00: They're seeking to, however you want to call it, whether it's using the word maintain, they're seeking to restore the status quo. [00:19:05] Speaker 00: And that requires a mandatory injunction. [00:19:08] Speaker 00: And that's what they're looking for. [00:19:09] Speaker 00: Despite the practicalities of that, that seems to be [00:19:18] Speaker 00: something that can be, you know, they can do that, I guess is what I'm trying to say. [00:19:25] Speaker 00: And I don't understand your argument that this is anything like the case with the, you know, constructed building. [00:19:32] Speaker 00: We're not talking about now tearing a building down. [00:19:35] Speaker 00: We're simply talking about repopulating the facility with the Hawks. [00:19:42] Speaker 00: That's an entirely different seek there. [00:19:46] Speaker 01: So let me approach this, Your Honor, with when the district court granted the relief, because I think the context matters in time here. [00:19:54] Speaker 01: What the district court was considering, when it considered it, there was actually a population of 400,000 hogs. [00:20:00] Speaker 01: The only relief requested was to maintain that population. [00:20:05] Speaker 01: Now they're asking, and by their own briefing they ask it, for a repopulation order. [00:20:11] Speaker 01: Now the district courts did treat this as a mandatory injunction. [00:20:15] Speaker 01: But they treat the court judge Shelby treated it as a mandatory injunction because in order to affect the prohibitive relief that they wanted. [00:20:24] Speaker 01: In other words, there are four hundred thousand hogs. [00:20:27] Speaker 01: I want in order to maintain that, it would require affirmative action by Murphy Brown to do so, obviously, the maintenance of the employees, the maintenance of the hogs, and a continued operation. [00:20:39] Speaker 01: So the court, I don't believe the court saw this at all as requesting affirmative relief. [00:20:46] Speaker 01: It simply said there were affirmative acts that had to be taken in order to grant prohibitive relief, and that's what was sought. [00:20:54] Speaker 01: The to say your honor that well, obviously you ultimately. [00:20:59] Speaker 01: Could put more hogs in those farms. [00:21:02] Speaker 01: I don't I can't deny that that could be done, but there is a multi million dollar impact to Murphy Brown and it is forcing Murphy Brown to operate a non profitable business, which is what the district court found in the balance of harms analysis. [00:21:23] Speaker 00: Could you address his argument about the assumption as far as this being a unique good and the fact that fibro can't cover the loss? [00:21:34] Speaker 00: And why does this, they argue this demonstrates on its own, at least under the UCC, irreparable harm here under the circumstances of this case. [00:21:43] Speaker 00: Can you address that? [00:21:45] Speaker 01: Yes, your honor. [00:21:46] Speaker 01: I believe that's sort of a reductionist fallacy here. [00:21:49] Speaker 01: I agree that the district court gave them credit and said this is a unique good, and that they might not be able to cover. [00:21:58] Speaker 01: But that doesn't alter the proper analysis, which is what the district court did, which said, I'll give you that as a factor, and I'll waive that in your favor. [00:22:08] Speaker 01: But I'm going to look at all of these other aspects of the ARMSA [00:22:12] Speaker 01: Your inability to present proof at trial and your inability to show that in fact you would go out of business and your inability to show that your damages were incalculable and the court said when I balance all that together. [00:22:25] Speaker 01: I can't weigh that fact. [00:22:26] Speaker 01: I can't have that one single factor outweigh what I am required to do under rule 65, which is to balance the totality of the circumstances. [00:22:35] Speaker 01: So I do think they made that argument. [00:22:37] Speaker 01: I'm not, for purposes of this appeal, we're not disagreeing with that. [00:22:41] Speaker 01: I just, it's a reductionist flaw because they're still, what they're essentially saying is the district court's error was it didn't give enough weight to this one factor [00:22:52] Speaker 01: As opposed to all the factors and evidence it did give weight to. [00:22:55] Speaker 00: Well, they're saying there wasn't any discussion at all of the lost value of the goods by the district court. [00:23:01] Speaker 00: That basically, it's not just a lack of giving it enough weight that it didn't give it any weight. [00:23:07] Speaker 01: And I would disagree with that argument that they've made. [00:23:10] Speaker 01: The district court did talk about historical performance, historical cost of goods. [00:23:16] Speaker 01: Now, if their argument is, well, it's a unique good, that doesn't mean its cost is unknowable. [00:23:23] Speaker 01: What that means is that it may be difficult to calculate, but that doesn't mean there isn't still a delta to be calculated. [00:23:32] Speaker 01: If the delta is whatever that value is, then they're still able to calculate a delta which shows their damages. [00:23:39] Speaker 01: This isn't a matter of trying to create a measure for a contract. [00:23:43] Speaker 01: The question is, can they show damages for what they are alleging that is occurring here? [00:23:48] Speaker 01: And their allegation is, [00:23:50] Speaker 01: that this business is valueless. [00:23:54] Speaker 04: Is there a risk to Murphy Brown that you may get what you ask for? [00:23:58] Speaker 04: I mean, if you end up back no injunction but damages, and they calculate, OK, we'll look at the replacement value, which is getting manure to this site, you guys might face a truly enormous damages amount. [00:24:16] Speaker 01: I don't know that let me answer your question. [00:24:20] Speaker 01: Is that a possibility with this art with the argument they've made? [00:24:24] Speaker 01: Yes, I'm sure they will argue that that is in is an astronomical number, but that doesn't mean it doesn't get them over the hurdle here for a preliminary injunction to show that their damages cannot be calculated. [00:24:38] Speaker 04: Can you answer very quickly, just in a sentence, why the UCC appears to differentiate between sellers damages and buyers damages and only sellers damages are given lost profits and not buyers? [00:24:53] Speaker 04: Why? [00:24:56] Speaker 01: Your honor, I cannot answer that question without, I honestly do not know the answer to the question and I don't want to speculate on what the framers of the UCC know. [00:25:06] Speaker 04: That's all I need to know. [00:25:07] Speaker 04: Thank you. [00:25:07] Speaker 04: Sorry. [00:25:08] Speaker 04: It's a mystery. [00:25:09] Speaker 04: I'm sorry. [00:25:09] Speaker 03: Did you comment on Mr. Mortson's argument that they can't get consequential damages here under the contract and, you know, that kind of shifts the irreparable harm analysis in their favor? [00:25:24] Speaker 01: In our view, Your Honor, it doesn't. [00:25:27] Speaker 01: And here's why it shouldn't. [00:25:29] Speaker 01: And we both sides have cited some case law on either side of that balance, which is simply because you contracted away certain rights, you don't get to create irreparable harm for yourself by contracting away those rights. [00:25:42] Speaker 01: I think that's particularly applicable in this case. [00:25:45] Speaker 01: You have two very sophisticated parties. [00:25:47] Speaker 01: When this agreement was initially negotiated, two very sophisticated parties negotiated that term into it. [00:25:53] Speaker 01: When Fibro purchased this contract and purchased the rights to perform this contract, they had a long due diligence period. [00:26:02] Speaker 01: They were able to review the terms of it. [00:26:03] Speaker 01: It's a very sophisticated business with counsel. [00:26:06] Speaker 01: They know those terms are there. [00:26:08] Speaker 01: And to now say, oh, well, we should be able to count the fact that we can't get consequential damages as irreparable harm, [00:26:17] Speaker 01: simply flies in the face of that sophistication. [00:26:21] Speaker 01: It also flies in because, and this was the district court's point, the parties negotiated specific terms in that arms that relate to the UCC. [00:26:31] Speaker 01: One of them also was, and we're all familiar with these provisions and contracts, there's no provision in there that either says breach of the agreement constitutes irreparable harm [00:26:42] Speaker 01: or that breach of the agreement should provide a route to specific performance. [00:26:47] Speaker 01: So now they're basically what they're doing, Your Honor, is picking and choosing. [00:26:52] Speaker 01: Well, because we don't have a right to consequential damages, that should be irreparable harm. [00:26:57] Speaker 01: But never mind the fact that we failed to put in a provision that says breach of the contract constitutes irreparable harm. [00:27:03] Speaker 01: And one would think [00:27:04] Speaker 01: If you knew you couldn't get consequential damages and you thought that would cause irreparable harm, you certainly would have put in a provision that said, but breach of the contract is irreparable harm. [00:27:15] Speaker 01: Judge Shelby pointed that out in his in his order at the district court level as a factor that militated heavily against granting the preliminary injunction. [00:27:30] Speaker 01: So let me move on, Your Honors. [00:27:33] Speaker 01: I'm going to jump quickly to, we've covered the uniqueness argument, and I have about a minute to go. [00:27:40] Speaker 01: So I'm going to focus really quickly on what I think is the fundamental flaw in the appeal, which is that this is a carefully written order, and it's an order where [00:27:53] Speaker 01: the elements of the preliminary injunction under Rule 65, that is a heightened showing. [00:27:59] Speaker 01: And I mentioned that I would touch on this when I began my argument. [00:28:04] Speaker 01: That's a heightened showing. [00:28:05] Speaker 01: And Judge Shelby actually gave Fibro the benefit of the doubt on a lot of its key arguments and said, I'll count those arguments on your side of the column. [00:28:14] Speaker 01: But the court then went through and looked at each of these elements and the [00:28:19] Speaker 01: The majority, almost uniformly, the problem with Fibro's case was they didn't have the proof to carry their burden. [00:28:28] Speaker 01: This is not an error of law, and it's not and it carries with the court mischaracterized the evidence. [00:28:34] Speaker 01: It's clear that Fibro didn't have the evidence, and that's why the preliminary injunction was denied. [00:28:40] Speaker 01: And we would ask the 10th Circuit in this court to affirm that. [00:28:43] Speaker 01: Thank you. [00:28:44] Speaker 03: Thank you, counsel. [00:28:44] Speaker 03: Mr. Morton, you have some rebuttal time? [00:28:55] Speaker 02: Thank you, Your Honor. [00:28:57] Speaker 02: I'd like to focus on two quick points. [00:29:00] Speaker 02: The first has to do with the cattle case. [00:29:02] Speaker 02: As you pointed out, Judge Moritz, the entire framing of this injunctive relief request was supplying the manure that we are contractually entitled to. [00:29:14] Speaker 02: If you read pages 1882 through 1887 of our motion for a preliminary injunction, you will see that we are asking the court to order [00:29:23] Speaker 02: Murphy Brown to supply us the manure we are entitled to, ordering them to have finishers at the finisher barns undoubtedly provides us the relief that we were asking the district court for. [00:29:35] Speaker 03: How's this, if we reverse an injunction put in place, how's the district court going to manage an injunction in these circumstances? [00:29:45] Speaker 03: It's [00:29:46] Speaker 03: It seems almost like they're going to be involved in the day-to-day operations of a fairly complex agricultural business. [00:29:53] Speaker 03: How's that going to work? [00:29:55] Speaker 02: It's going to be seamless. [00:29:57] Speaker 02: There are very few individuals involved in the process. [00:30:01] Speaker 02: They're connected by a pipeline. [00:30:03] Speaker 02: As long as the finishers are there, the manure will travel to the facility. [00:30:06] Speaker 02: There's no real micromanagement that will be required. [00:30:11] Speaker 02: And the court didn't suggest otherwise in its ruling, besides saying that this would require a mandatory injunction. [00:30:18] Speaker 02: If I could just point out, the district court's order is internally contradictory. [00:30:25] Speaker 02: Because the court again says that the value of the good or the good is unique and that febrile cannot cover. [00:30:34] Speaker 02: It is ignoring our cover damages and only talking about our consequential damages. [00:30:40] Speaker 02: So our point is not that the limitation of liability clause on its own creates irreparable harm. [00:30:46] Speaker 02: Our point is that [00:30:48] Speaker 02: the limitation of liability clause in addition to the district court ignoring our cover damages. [00:30:54] Speaker 02: It's the inability to calculate our cover damages that constitutes irreparable harm. [00:30:59] Speaker 02: And yeah, we can argue for an astronomical damages number as Judge Ebell pointed out, but even that's not consistent with what judge shall be held, which is that it's a unique good that's irreplaceable. [00:31:12] Speaker 02: And with that, we would ask the panel to affirm [00:31:15] Speaker 02: or excuse me, to reverse and remand for further proceedings. [00:31:19] Speaker 03: Thank you. [00:31:19] Speaker 03: Yeah, thank you, Council. [00:31:20] Speaker 03: We appreciate the arguments by Zoom today. [00:31:22] Speaker 03: It worked pretty well. [00:31:24] Speaker 03: You are excused, and the case will be submitted. [00:31:27] Speaker 03: For the panel, I sent a separate Zoom link for our conferencing, which I think is at 1045. [00:31:35] Speaker 03: Thank you. [00:31:36] Speaker 00: Thank you. [00:31:36] Speaker 03: Board in recess until further notice.