[00:00:00] Speaker 03: Case of today's docket is Teva Pharmaceuticals versus Wiser, and it's 241035, and we'll hear from Mr. Nelson. [00:00:22] Speaker 00: Good morning, and may it please the Court. [00:00:26] Speaker 00: The Fifth Amendment's Takings Clause [00:00:28] Speaker 00: does not prohibit the taking of private property. [00:00:33] Speaker 00: The Takings Clause is designed to secure compensation if there is a taking. [00:00:39] Speaker 00: In other words, the Takings Clause provides a right to compensation. [00:00:46] Speaker 00: The Fifth Amendment does not require this compensation to proceed the taking. [00:00:51] Speaker 00: All that it requires is that the property owner have some way to obtain compensation after the fact. [00:00:58] Speaker 00: This has been basic, fundamental, takings-cause doctrine for over 130 years. [00:01:05] Speaker 00: And this basic, fundamental doctrine also makes this case simple to resolve. [00:01:11] Speaker 03: On the merits? [00:01:13] Speaker 00: No, this is a jurisdictional question. [00:01:14] Speaker 03: Well, I know it's a jurisdictional question, but whether or not the Tiva Pharmaceuticals is a valid takings theory predicated on [00:01:26] Speaker 03: the adequacy or inadequacy of the state remedy, I understand what you just said, but why doesn't that pertain only to the validity of the claim on the merits, rather than whether or not TIVA Pharmaceuticals is seeking prospective injunctive relief, which is, I have always understood, is the first prong of ex partea. [00:01:51] Speaker 00: I think the answer to that question, Your Honor, is the nature of the 11th Amendment immunity itself. [00:01:57] Speaker 00: So as the Supreme Court discussed in Puerto Rico aqueduct, 11th Amendment immunity provides immunity for certain people. [00:02:04] Speaker 00: The whole purpose is to obviate the need for state officials to be dragged into federal court. [00:02:10] Speaker 00: And so the ex parte young analysis is really connected to that underlying concept. [00:02:17] Speaker 00: Why put [00:02:19] Speaker 00: state officials and states through the process if the injunctive relief is not available to begin with. [00:02:26] Speaker 00: And so I think it does implicate jurisdiction. [00:02:28] Speaker 00: It's not a merits question. [00:02:30] Speaker 03: Well, isn't that a good argument that the Supreme Court made a mistake in 1908 when they issued Ex parte Young? [00:02:36] Speaker 03: What is there at Ex parte Young that allows for a gloss [00:02:44] Speaker 03: saying, well, you satisfy the first prong of ex parte young if you are seeking prospective injunctive relief for an ongoing violation of federal law, unless the claim itself triggers the underlying concept for the basis for the 11th Amendment as an immunity from suit. [00:03:09] Speaker 00: I think in order to answer that question, we need to go back and see what [00:03:12] Speaker 00: Ex parte Young is based upon, and it really was an effort of the Supreme Court to harmonize the 11th Amendment with the other rights secured by the Constitution. [00:03:21] Speaker 00: It's supposed to vindicate federal rights, but Ex parte Young does not expand the scope of the underlying constitutional right itself. [00:03:30] Speaker 00: So that's why I started out talking about Fifth Amendment doctrine itself, because it's been clear for over 130 years that the Takings Clause, which by the way is also called the Just Compensation Clause, [00:03:40] Speaker 00: is really designed to provide for compensation. [00:03:43] Speaker 00: And if a party can get compensation, that is their remedy for a violation of the Fifth Amendment, taking this clause. [00:03:53] Speaker 00: So that's why this implicates ex parte Young and why simply asking for an injunction does not allow the courtroom doors to be flown open. [00:04:04] Speaker 00: That has never been the case in the ex parte doctrine. [00:04:07] Speaker 00: especially in the Fifth Amendment context. [00:04:09] Speaker 00: You look at cases like Pennhurst, you look at cases like Edelman, even the court's decision in Williams, you actually look at what they're requesting, and if that doesn't match up with what they're entitled to, sovereign immunity applies. [00:04:24] Speaker 03: Well, of those three cases, the only one that involved Ex parte Young was Judge Bullock's opinion in Williams, and why isn't your theory incompatible [00:04:37] Speaker 03: with the opinion in Williams, which specifically addressed Mr. Haddock's role as the government official. [00:04:52] Speaker 03: And he was the only one that didn't vote ex parte Young in Williams. [00:04:58] Speaker 03: And it specifically differentiated Mr. Haddock's role from all of the other UDOC defendants in Williams. [00:05:06] Speaker 03: So why doesn't Williams cut against you? [00:05:09] Speaker 00: I think Williams supports me because that is the position or the approach that I'm asking the court to take here, which is you actually have to look at what injunctive relief is being requested to see whether or not it matches with the ex parte young exception, right? [00:05:25] Speaker 00: And that is where I think the district court's ex parte analysis and Teva's argument really falls apart here is because they really can't dispute that [00:05:36] Speaker 00: they're only entitled to just compensation under the Takings Clause. [00:05:40] Speaker 00: And so the glaring mismatch between what they're entitled to for the purported constitutional violation and what they're requesting, it just does not further ex parte Young. [00:05:50] Speaker 00: And I don't think other courts that have squarely addressed this issue have come out the way that I'm suggesting, which is, listen, the remedy you're asking for is not available under [00:06:01] Speaker 00: your theory, so we have to dismiss this case under sovereign immunity principles. [00:06:05] Speaker 04: What if we determine that the remedy available under Colorado law was inadequate? [00:06:14] Speaker 04: I mean, then it's okay, isn't it, to grant prospective relief? [00:06:19] Speaker 04: Because you don't just have to provide just compensation. [00:06:23] Speaker 04: I mean, it has to be an adequate remedy. [00:06:26] Speaker 04: Correct. [00:06:27] Speaker 04: So if there's a determination that the remedy is inadequate or an allegation that the remedy is inadequate, then that's a merits question. [00:06:37] Speaker 00: No, it's not, Your Honor. [00:06:39] Speaker 00: I think that, again, that is a 11th Amendment upfront question. [00:06:43] Speaker 04: So in your opinion, we sort of have a mixture of the merits and the 11th Amendment question to determine that we have to [00:06:54] Speaker 04: where we have to consider the merits at least to some degree in order to determine whether there's 11th Amendment immunity? [00:07:02] Speaker 00: Not quite, Your Honor. [00:07:03] Speaker 00: What I'm saying is that whether or not there's an adequate remedy, state court remedy available, that's a purely legal question that the court can look at and decide. [00:07:12] Speaker 00: It's not really a merits determination. [00:07:14] Speaker 00: And I think the other courts that have sort of approached this [00:07:20] Speaker 00: you know, squarely address this issue that we're talking about today, have approached it in that way. [00:07:24] Speaker 04: So tell me what the remedy is. [00:07:27] Speaker 04: I mean, do better, too, than just saying, well, they're entitled to just compensation, because that's amorphous. [00:07:35] Speaker 04: I mean, is the remedy they can file 14,000 lawsuits a year, is that their remedy? [00:07:45] Speaker 04: No. [00:07:46] Speaker 04: Is there a remedy that they can bundle them up [00:07:48] Speaker 04: file a big lawsuit every two years. [00:07:53] Speaker 00: So their litigation strategy, I'll leave it up to Temple's counsel to determine that, but their actual remedy is under Colorado law, they have a cause of action to get a just compensation for violation of the takings clause of the Colorado constitution and the federal constitution. [00:08:11] Speaker 00: So that is open to them in federal court. [00:08:15] Speaker 00: They can get just compensation, which is the fair market value for every [00:08:18] Speaker 00: EpiPen that supposedly is taken in the process. [00:08:22] Speaker 00: But that's not all. [00:08:24] Speaker 00: Just like every other law student in Colorado, the prevailing party is entitled to litigation costs, costs and fees. [00:08:31] Speaker 00: So they get that there. [00:08:33] Speaker 00: And just like with every other constitutional violation case in Colorado court, if a plaintiff prevails, they're entitled to attorney's fees. [00:08:42] Speaker 00: So all the remedies that are available to them [00:08:46] Speaker 00: Just compensation, fair market value, litigation costs, attorney fees, oh, and I forgot, prejudgment interest, right? [00:08:52] Speaker 00: So, and this is why I think this whole notion of an infinite number of suits just is practically not the case, right? [00:09:01] Speaker 04: Well, it does, I mean, it does make it different than most takings cases that you look at in the reported decisions. [00:09:11] Speaker 00: Right, because typically when we're talking about takings, especially in the state court context, we're talking about eminent domain, inverse combination, real property cases. [00:09:20] Speaker 00: But I think if you look at the horn decision from the US Supreme Court, I think the message- Which decision was that? [00:09:28] Speaker 04: I didn't hear you. [00:09:29] Speaker 00: Horn. [00:09:30] Speaker 00: Horn. [00:09:31] Speaker 00: H-O-R-N-E. [00:09:32] Speaker 00: It's about the raise and set of sides. [00:09:35] Speaker 00: You know, I think the underlying message there is that there's really not a difference between real property and personal property when we're talking about takings, right? [00:09:44] Speaker 00: It's sort of analyzed under the same concepts. [00:09:48] Speaker 00: And so the fact that we're talking about epinephrine auto-injectors and not, you know, a piece, an acre of property, it doesn't really matter. [00:09:58] Speaker 00: It's never sort of been a distinction within our jurisprudence. [00:10:00] Speaker 00: And I don't think this court should start adopting that distinction now. [00:10:05] Speaker 02: Isn't an adequate remedy a conclusion to the matter once and for all? [00:10:12] Speaker 00: No. [00:10:13] Speaker 00: So again, we're talking about federal court jurisdiction here. [00:10:17] Speaker 00: So if they have an adequate remedy in Colorado State Court, this case should end here in federal court. [00:10:26] Speaker 00: And if TEFA chooses, they should go to Colorado State Court and there we can really litigate whether or not there's a taking [00:10:31] Speaker 00: And if there's a taking, what's just compensation for that taking? [00:10:34] Speaker 02: I'm talking about this case. [00:10:37] Speaker 02: In other words, if the remedy isn't adequate, it's not an adequate remedy. [00:10:42] Speaker 02: And conclusion or finality is always a part, usually, of what an adequate remedy is, isn't it? [00:10:52] Speaker 00: Not in the Fifth Amendment takings context, Your Honor. [00:10:54] Speaker 00: I think that's never been the case. [00:10:57] Speaker 00: You know, repeatedly, [00:10:59] Speaker 00: over the years, the Supreme Court has basically said, you know, you get just compensation for the taking. [00:11:04] Speaker 00: And if you get just compensation, then injunctive. [00:11:06] Speaker 02: Yeah, well, what's happening here is you're saying that the adequate remedy is the fact that they can, each time that this occurs, they can bring a lawsuit in Colorado and argue that we need to be paid for that. [00:11:22] Speaker 02: That's not a conclusion to the matter. [00:11:24] Speaker 02: You just dumped it all over on them, but they still have to comply. [00:11:29] Speaker 02: with the takings. [00:11:33] Speaker 00: Right, because I think it goes back to the Fifth Amendment's guarantees, which is the right to just conversation. [00:11:38] Speaker 02: I know where it goes back to. [00:11:39] Speaker 02: I'm just saying an adequate remedy to me, if I personally was looking at it, would be a finality to put an end to the litigation. [00:11:51] Speaker 00: So that goes to my preclusion argument, Your Honor. [00:11:57] Speaker 00: Because these are identical products, [00:12:00] Speaker 00: in an identical law, one lawsuit would be all that would be necessary really to decide these issues, right? [00:12:09] Speaker 00: You say right. [00:12:10] Speaker 00: I don't necessarily agree with that. [00:12:13] Speaker 00: I contend, you're correct. [00:12:15] Speaker 00: I contend that really one is, you know, given issue preclusion principles and claim preclusion principles, it would provide a degree of finality. [00:12:24] Speaker 00: So the notion that they'd have to file 14,000 lawsuits just really isn't the case. [00:12:29] Speaker 04: I'd like to... It would be their burden every time they filed a suit to prove, even if they could use offensive collateral estoppel or offensive claim issue preclusion to prove that the taking had occurred, it would be their burden to establish how many EpiPens were taken, or as I've been advised by my law clerks, [00:13:00] Speaker 04: Epinephrine auto injectors were taken in each suit. [00:13:06] Speaker 04: And so they do have some litigation burden in every case, and presumably the state could say, oh no, we disagree. [00:13:12] Speaker 04: You're eight pins over. [00:13:16] Speaker 04: It was only 64 injectors. [00:13:21] Speaker 00: So in terms of the tracking point, Your Honor, this is a sophisticated pharmaceutical company that [00:13:27] Speaker 00: presumably tracks their products. [00:13:29] Speaker 00: So that's, you know, sure there'd be some tracking involved, but that really wouldn't be an onerous burden, right? [00:13:34] Speaker 00: And so there's that piece, and then there's also the piece of, you know, if they prevail in Colorado State Court and they get the issue of preclusion that they want, all they have to do is file a case, say, this has already been decided, here's all the pens we've given, [00:13:55] Speaker 00: there's evidence and it would really be difficult for the state to really contest that at that point. [00:14:00] Speaker 00: So, given issue preclusion, this concept of multiplicity of suit is practically not correct. [00:14:06] Speaker 00: And I think it's never really been in our jurisprudence. [00:14:09] Speaker 00: I see my time is about to expire, I'd like to reserve the rest for rebuttal. [00:14:12] Speaker 03: Okay, we'll stop the clock at 45, but I do want my colleagues to be able to answer. [00:14:19] Speaker 04: No, I don't have anything else, thank you. [00:14:20] Speaker 03: All right, thank you. [00:14:22] Speaker 03: Thank you. [00:14:35] Speaker 01: Good morning, and may it please the Court. [00:14:37] Speaker 01: Jay Lefkowitz on behalf of the Appellants. [00:14:40] Speaker 01: Much of what my colleague has argued goes to the ultimate merits. [00:14:44] Speaker 01: Is there an adequate remedy? [00:14:45] Speaker 01: And I do want to answer Judge Carson's question before I sit down about the burden. [00:14:50] Speaker 01: But I think it's important to start with the premise that as the Supreme Court made clear in Verizon, as this Court reiterated in Fowler, as the Court reiterated just this past week in the Guy Clark, Deb Howland case [00:15:05] Speaker 01: The standard under the Verizon case by the Supreme Court is, does the party seeking relief seek prospective injunctive relief to prevent an ongoing harm? [00:15:19] Speaker 01: And that is the threshold question. [00:15:21] Speaker 01: And I recognize that in the event that the party opposing it says, well, it's a frivolous claim, there is some case law, even if Verizon mentions that. [00:15:30] Speaker 01: But no one is suggesting that our claim is frivolous, and in fact, the trial judge [00:15:35] Speaker 01: has said we may well be entitled to an injunction. [00:15:39] Speaker 01: He wants to look at this when it comes back to him, but he says based on the multiplicity of suits here, we may well not have an adequate remedy. [00:15:48] Speaker 01: And he also has said conclusively on page 14, what the state is doing with the EpiPen is a taking. [00:15:55] Speaker 01: So I think the question on this narrow appeal, which is an 11th Amendment immunity appeal, [00:16:02] Speaker 01: The state has not sought or received 1292 certification to appeal the 12b6 ruling. [00:16:09] Speaker 01: The question is simply, have we stated a claim that would survive the ex parte yang exception? [00:16:15] Speaker 01: And I think it absolutely would. [00:16:17] Speaker 01: There's no question here, as in the case we listened to earlier this morning, that the attorney general is the proper party in this case to sue. [00:16:27] Speaker 01: The only question is, what is the relief that we are seeking? [00:16:31] Speaker 01: It's clearly not frivolous. [00:16:32] Speaker 01: Now, I do think going beyond just that narrow question, which I think is sufficient to decide the appeal here, if the court were even to reach this question, I do think it should hold that equitable relief is available to avoid an endless series of damages here. [00:16:53] Speaker 01: And what the Nick case makes clear is [00:16:55] Speaker 01: In the normal takings case, injunctive relief probably won't be available because when you're dealing with one act of the government that takes your property, that violates your rights to get access to something, it's a one-time event. [00:17:11] Speaker 01: And so you can look and assess what the compensation would be. [00:17:15] Speaker 01: This is the very unusual situation where what the government is authorizing is an endless stream of takings. [00:17:23] Speaker 01: per se takings. [00:17:25] Speaker 01: And it doesn't matter, frankly, as the Coombs Court said, it doesn't matter whether they're taking our actual physical property or offering us the alternative of paying for it. [00:17:39] Speaker 01: The reality is we are losing our property and we would be required to undergo a multiplicity of suits, which is a basic standard under equity law for having [00:17:51] Speaker 01: a non-adequate or an inadequate remedy. [00:17:54] Speaker 03: And to answer Judge Carson's... Is there an inherent tension in the claim in the fact, in the sense that the statute went into effect on January 1st, 2024, and when you sought this prospective injunctive relief, the statute, as I understand it, had not gone into effect. [00:18:21] Speaker 03: And yet the second prong of Ex parte Young is to enjoin an ongoing violation of federal law. [00:18:29] Speaker 03: And so you're making the point now, I think, well stated, that you're seeking respective injunctive relief rather than retroactive injunctive relief that might accompany a more conventional taking claim. [00:18:43] Speaker 03: But then again, when you sought the injunction, there had been no taking yet. [00:18:49] Speaker 01: Correct, but what we were seeking at the time, and the court addressed the questions of standing and rightness in the context of imminent constitutional violations, we were seeking to actually enjoin what was a certainty, what was going to happen under this statute, and there was never any, as the court recognized below, never any disclaimer of its intent to enforce the statute. [00:19:11] Speaker 01: Now, in fairness, the trial judge denied our request for preliminary injunctions that during the course of this litigation, [00:19:18] Speaker 01: I don't think you'll suffer irreparable harm because I'll be there to address it and you can seek permanent injunctive relief, which is frankly what we intend to do on remit. [00:19:28] Speaker 01: But I want to just address briefly Judge Carson's specific question about the burden. [00:19:32] Speaker 01: You know, it isn't just, Your Honor, the question of whether it's 15 EpiPens or 20 EpiPens, whether it's 100 or 300. [00:19:41] Speaker 01: We also have the question, we're entitled to fair market value. [00:19:45] Speaker 01: And the way that drug manufacturers sell, they don't sell directly to the pharmacies. [00:19:51] Speaker 01: They sell to wholesalers under complicated discount arrangements that are volume-based and perhaps even time-based. [00:19:59] Speaker 01: And so we would technically be entitled to our just compensation for the EpiPens that were [00:20:06] Speaker 01: delivered in January, and then in February, and then in March, and they might have different prices attached to them. [00:20:12] Speaker 04: Can I find this in the record? [00:20:15] Speaker 04: Is this going to be in the record? [00:20:16] Speaker 01: It's not in the record yet. [00:20:20] Speaker 01: This is what would be developed on remand. [00:20:23] Speaker 01: Our argument was simply, and I was just answering your question, our argument is simply, even just looking at the statute, we would be required [00:20:32] Speaker 01: to have a multiplicity of suits. [00:20:34] Speaker 01: And frankly, under Nick, where the Supreme Court said the constitutional violation takes place at the moment of the taking, we wouldn't even be required to wait till the end of the two-year statute of limitations period. [00:20:47] Speaker 01: We technically would be entitled, if we wanted, I'm not sure we would, to file a lawsuit every single time we got a new EpiPen request from a pharmacy. [00:21:00] Speaker 04: In light of the fact that you can recover your costs and you can recover your attorney's fees, why is that an inadequate remedy, even if you have to file 14,000 of them a year? [00:21:15] Speaker 01: The Supreme Court has made very clear, going all the way back to Terrence versus Thompson, that a damages remedy is only adequate if it is as complete, practical, and efficient as that which equity could afford. [00:21:29] Speaker 01: As Wright and Miller makes very clear, equity relief should be available when effective legal relief can only be secured by a multiplicity of actions. [00:21:40] Speaker 01: This is the paradigmatic case for that. [00:21:43] Speaker 01: That's certainly what the Eighth Circuit found on almost an identical statute. [00:21:48] Speaker 01: It related to insulin instead of epinephrine injectors, but it was essentially the identical statute. [00:21:54] Speaker 01: And they found that damages remedy was not adequate. [00:21:59] Speaker 01: In a somewhat similar but not identical context, a plurality of the Supreme Court in Eastern Association versus Apfel recognized that if all that's happening is you're seeking compensation and then getting it paid directly back and you're creating essentially a revolving door with the government, it can't possibly be that that's what the purpose of the statute was, because after all, the government could just buy the EpiPens directly from the manufacturers. [00:22:27] Speaker 01: and distribute them to people in Colorado if they wanted. [00:22:31] Speaker 01: So I do think, but again, your honor, I just want to say, going back to Judge Bacharach's very first question to the state, we are really talking now about prong two of the analysis, which, as this court and as the Supreme Court has said, is not really the appropriate question to ask as long as we're not dealing with a frivolous complaint. [00:22:51] Speaker 01: And this is clearly a complaint that is asking to enjoin prospective ongoing relief [00:22:58] Speaker 01: We are now suffering that harm at this stage in the case. [00:23:03] Speaker 01: And I think the Williams case is really as directly on point as you can have. [00:23:11] Speaker 01: In the first part of that case, what the court made very clear was this was a case claiming the failure, you know, to pay interest on the prisoner or inmate accounts. [00:23:22] Speaker 01: And it says they failed to pay the interest. [00:23:25] Speaker 01: And the whole first part of that decision [00:23:28] Speaker 01: goes through and says, look, for a damages remedy, state court is open to you. [00:23:36] Speaker 01: And they cite a Utah statute and a Utah case and said, so there is no question that a just compensation remedy is available. [00:23:44] Speaker 01: But then the second part of that opinion, which would not have even been necessary to write, but for the principle I'm arguing for here, says, but Mr. Williams asserts that 11th Amendment immunity doesn't apply to its [00:23:58] Speaker 01: claim against Haddon, who was one of the Department of Correctional Officials, the executive director. [00:24:04] Speaker 01: Why? [00:24:04] Speaker 01: Because an exception exists for prospective injunctive relief. [00:24:08] Speaker 01: And then Judge Baldock goes through very carefully and says, but here the complaint doesn't allege any prison official should be enjoined from a future violation. [00:24:20] Speaker 01: That entire analysis wouldn't have been necessary if the state's argument is correct. [00:24:28] Speaker 03: In Williams, the plaintiff didn't argue that any of the other defendants other than Mr. Haddock were entitled to invoke ex parte young. [00:24:38] Speaker 03: So I'm not sure the last part of what you just said is correct. [00:24:42] Speaker 01: Well, I guess my point is, first of all, this court on many, many occasions addressed the ex parte young issue, suespante, because it's jurisdictional. [00:24:52] Speaker 01: And my point is the Williams court had no problem disposing of [00:24:58] Speaker 01: the claim against the government officials when it was a claim for damages. [00:25:06] Speaker 03: Ex parte Young creates jurisdiction. [00:25:08] Speaker 03: We have no obligation to sua sponte divine bases to acquire jurisdiction. [00:25:15] Speaker 03: We have a sua sponte basis to make sure that jurisdiction hasn't been improperly exercised. [00:25:22] Speaker 01: That's true. [00:25:22] Speaker 01: I guess the state could wave their [00:25:25] Speaker 01: their immunity if they wanted to. [00:25:27] Speaker 01: But my only point is, in the Williams case, the whole discussion of ex parte young and the exception for prospective injunctive relief wouldn't have even been relevant since there wasn't a claim for injunctive relief there. [00:25:44] Speaker 01: The court simply made the point, I believe, to recognize that there are two different types of takings claims. [00:25:51] Speaker 01: There are takings claims and most of the cases that the [00:25:55] Speaker 01: State sites. [00:25:57] Speaker 01: There's a case from the Sixth Circuit that the state cites called Laborers International. [00:26:02] Speaker 01: There's a 10th Circuit case, EEE Minerals. [00:26:05] Speaker 01: There's an 8th Circuit case, Long versus Bureau Reclamation. [00:26:08] Speaker 01: Every one of those cases was a case where what the court was saying is, yes, they say it's a claim for injunctive relief, but it's really just disguised as a claim for damages. [00:26:18] Speaker 01: You know, I want injunctive relief to pay me the fair market value of my property. [00:26:24] Speaker 01: And when you have something that on the face of the complaint you can look at and say is not actually a claim for prospective injunctive relief, then I think as a matter of law, the court could say it doesn't qualify under ex parte Young's exception. [00:26:38] Speaker 01: But again, that's not the situation here at all. [00:26:41] Speaker 01: We have a very clean complaint. [00:26:44] Speaker 01: We have a determination by the trial judge that we may in fact be entitled to injunctive relief, but he's denied it. [00:26:51] Speaker 01: And the only issue that the state has appealed on is the question of 11th Amendment immunity. [00:26:57] Speaker 01: We know under Nick that an inadequate remedy would still potentially give rise to injunctive relief. [00:27:05] Speaker 01: It may be the rare case. [00:27:06] Speaker 01: We may or may not ultimately prevail. [00:27:09] Speaker 01: But the question for this court, and I don't think the court could have made it any more clear than it did in Fowler versus Stitt, is we look at the claim [00:27:19] Speaker 01: as raised, it's a straightforward analysis under Verizon, and we do not engage in an analysis of the merits of the claim. [00:27:27] Speaker 03: I want to make sure that I heard something you said earlier correctly. [00:27:32] Speaker 03: On the adequacy of the state court remedy, I thought I had heard you say that that's the second prong of ex parte young. [00:27:39] Speaker 01: No, it's not the second. [00:27:41] Speaker 01: No, no, no. [00:27:42] Speaker 03: Getting an injunction. [00:27:43] Speaker 01: It's the second prong of this lawsuit. [00:27:46] Speaker 01: That's what this lawsuit will ultimately be about. [00:27:49] Speaker 01: Sorry. [00:27:49] Speaker 01: Yes. [00:27:51] Speaker 01: If there are no further questions, I'm happy to rest on the argument in the briefs. [00:27:56] Speaker 03: All right, thank you. [00:28:12] Speaker 00: Your honors, I'd like to go back to the most specific point and just to emphasize truly how unprecedented [00:28:19] Speaker 00: this argument is. [00:28:21] Speaker 00: I have been unable to find this argument adopted in any Fifth Amendment case ever. [00:28:27] Speaker 00: And I think that really demonstrates just how far afield this concept is from our Fifth Amendment Takings Clause jurisprudence. [00:28:35] Speaker 00: The General Colorado General Assembly adopted this policy to address a pressing public health problem. [00:28:43] Speaker 00: TEVA disagrees with the approach, says that they should have taken a different approach. [00:28:48] Speaker 00: But it's fine, it was the Colorado General Assembly's prerogative to do what it did, right? [00:28:52] Speaker 00: As long as TEBA has just compensation remedies in state courts, that's all that's really necessary. [00:28:58] Speaker 00: The courts should not expand federal jurisdiction in the way that the judicial court has. [00:29:02] Speaker 00: I see my time has expired. [00:29:05] Speaker 00: Thank you very much. [00:29:06] Speaker 00: All right, thank you. [00:29:08] Speaker 03: This matter will be submitted. [00:29:09] Speaker 03: Thank you, counsel, from both sides for your excellent written and oral advocacy.