[00:00:00] Speaker 01:
Good morning, your honors, and may it please the court, Samuel Zacharoff for the Biederman plaintiffs.

[00:00:07] Speaker 01:
I'd like to reserve three minutes, if I may.

[00:00:10] Speaker 02:
All right.

[00:00:11] Speaker 02:
I'll try to help you out, but please keep track of your own time as well.

[00:00:14] Speaker 01:
Thank you very much, Your Honor.

[00:00:16] Speaker 01:
The RICO statute at issue here by its terms allows any person injured in his business or property by reason of a violation of the statutory restrictions to recover damages.

[00:00:28] Speaker 01:
The only question on this appeal is whether the term any person injured in his business or property must be read to mean any person who is a direct purchaser where the underlying scheme originates a sales transaction.

[00:00:44] Speaker 01:
The district court so held, and this is error for three fundamental reasons.

[00:00:49] Speaker 01:
First, prior to 1970 when RICO was adopted, the term any person was not understood to be restricted to direct purchases.

[00:01:01] Speaker 04:
But Council, if you're really gonna challenge what the district court did, seems to me you have to start with the fact that the district court was really saying,

[00:01:13] Speaker 04:
This is the same statute that we find in the Clayton Act.

[00:01:18] Speaker 04:
The language is the same.

[00:01:20] Speaker 04:
Illinois BRIC, which is a Supreme Court decision, has interpreted the language.

[00:01:26] Speaker 04:
They've said what it means.

[00:01:28] Speaker 04:
Consumers buy stuff from dealers.

[00:01:32] Speaker 04:
Dealers buy from somebody else.

[00:01:35] Speaker 04:
That's not enough.

[00:01:37] Speaker 04:
That's what they said in Illinois BRIC.

[00:01:39] Speaker 01:
That's what they said in Illinois brick, which was seven years after Rico was adopted.

[00:01:43] Speaker 04:
Well, I understand when it was, but I guess the thing that I'm trying to get you to look at, which is what I worry about looking at here, I have to look at the language here.

[00:01:55] Speaker 04:
And I have lots of precedent on the fact that if the language is the same, I'd interpret the same, even from the Supremes, and the language seems to be just the same.

[00:02:08] Speaker 04:
And that's what the District Court was stuck with.

[00:02:11] Speaker 01:
Yes, Your Honor, I agree that as of the enactment of RICO in 1970, the identical language should be interpreted in identical fashion.

[00:02:20] Speaker 01:
I fully agree with that proposition.

[00:02:22] Speaker 01:
The question is whether evolutions in the Clayton Act interpretation post 1970, by virtue of that change in the Clayton Act, automatically are transposed to RICO as well.

[00:02:36] Speaker 04:
But aren't you really just saying

[00:02:40] Speaker 04:
There are policy agreements that say we ought to do something different.

[00:02:45] Speaker 04:
There's my interpretation of Illinois brick that is, I don't know that I quite agree with the way the court did it.

[00:02:53] Speaker 04:
That's insufficient.

[00:02:55] Speaker 04:
But if I have to rebut the presumption that I'm looking at here, I have to show that the statutes were not intended to serve the same function.

[00:03:07] Speaker 01:
Yes, Your Honor.

[00:03:08] Speaker 04:
And in this particular instance, or that other parts of the tax counsel, a different interpretation.

[00:03:16] Speaker 04:
But the Supreme Court already said in Holmes that the presumption of consistent meaning of the civil RICO and the Clayton are the same.

[00:03:28] Speaker 04:
Your Honor, let me take... I mean, all I'm doing is trying to give you to give me the business because I'm stuck with what's happened here.

[00:03:38] Speaker 01:
But let me let me take that in two parts, if I may, your honor.

[00:03:40] Speaker 01:
The first part is, should we move the RICO understanding in the same way as the Clayton Act?

[00:03:46] Speaker 01:
And the second part is, what does Holmes say about that?

[00:03:49] Speaker 01:
So let me just separate those, if I may.

[00:03:51] Speaker 01:
On the first point, the Supreme Court has repeatedly said the statutes do not move in tandem.

[00:03:57] Speaker 01:
And so we have Sedima, we have Horn.

[00:04:00] Speaker 01:
We have bridge, which have rejected aspects of the interpretation of the Clayton Act in the specific context of Rico.

[00:04:10] Speaker 01:
And so the question of whether a personal injury counts in horn.

[00:04:14] Speaker 01:
even though it would not for antitrust purposes, does matter for injured indigenous or property under RICO.

[00:04:23] Speaker 01:
We have Sedima, which interpreted the same by reason of language in a very different way.

[00:04:30] Speaker 01:
Antitrust law requires a distinct antitrust injury.

[00:04:34] Speaker 01:
Sedima says we reject that as a matter of RICO interpretation.

[00:04:38] Speaker 01:
So we have strong evidence that the two do not move in tandem,

[00:04:43] Speaker 01:
And then we have the court in Bridge saying quite clearly, don't impose policy reasons why you think RICO should move.

[00:04:50] Speaker 01:
You have to stay within the bounds of the statute itself.

[00:04:54] Speaker 01:
Now, the district court made a... Can we go to Holmes?

[00:04:57] Speaker 03:
Because I think Holmes is your toughest case.

[00:05:00] Speaker 03:
Yeah.

[00:05:00] Speaker 03:
So... So, I mean, in Holmes, which followed after Sedima, it did use exactly what Judge Smith was talking about, using the, you know, the identical language and the purpose behind Congress modeling Civil Rico after the Clayton Act.

[00:05:18] Speaker 03:
And it did it under an analysis of proximate causation, but all of those same policy reasons that were undergirding Illinois brick applied in Holmes as well.

[00:05:28] Speaker 01:
Well, it turns out the key thing for us in Holmes is when Holmes does that, whether it does that as a matter of pleading that you must be a direct purchaser or something of that sort, or whether it does it

[00:05:40] Speaker 01:
Under the guise of the policy objectives of of Illinois brick and we think consistent with what this court wrote in Mendoza that it is the latter which controls.

[00:05:53] Speaker 01:
And so if you go back to homes and you look at the cert question that was granted in homes.

[00:05:59] Speaker 01:
The cert question was whether there was standing for the petitioners there in a case in which they were not in the direct line of purchase.

[00:06:11] Speaker 01:
They would not have had standing in antitrust under Illinois brick.

[00:06:16] Speaker 01:
And the court did not answer that question.

[00:06:19] Speaker 01:
Instead, the court handled it exclusively as a matter of proximate cause.

[00:06:23] Speaker 01:
The concurrences, both sets of concurrences, four justices said, wait a second,

[00:06:29] Speaker 01:
We would have answered that question and we would have answered that the petitioners do have standing here.

[00:06:35] Speaker 01:
So there is no member of the court that is in Holmes that is willing to throw the case out as a matter of on the pleadings on the standing question, which is very consistent with the way this court handled

[00:06:47] Speaker 01:
the issue in the Canyon County case in which the holding of Canyon County was that there was no standing because the plaintiff had failed to plead proximate cause.

[00:06:58] Speaker 01:
And that's what's being understood as the key elements of Illinois brick.

[00:07:04] Speaker 01:
If one goes to this court's opinion in Mendoza, what one finds is that Illinois brick is reduced to three

[00:07:12] Speaker 01:
inquiries that must be satisfied, that is, whether there's an apportionment difficulty, whether there's a better positioned party to effectuate the demands, and whether

[00:07:25] Speaker 01:
there's a risk of multiple obligations being improperly imposed on the defendant.

[00:07:30] Speaker 01:
In this case, we satisfy that because there is no one capable of suing other than the class here.

[00:07:39] Speaker 01:
We have alleged, as part of our complaint, that there is coordination conspiracy between FCA and Cummins.

[00:07:47] Speaker 03:
Why can't the dealer sue?

[00:07:49] Speaker 01:
The dealers can't sue under the terms of the complaint in paragraph 75.

[00:07:54] Speaker 01:
The dealers are captive entities of FCA.

[00:07:59] Speaker 01:
They are collaborators of FCA.

[00:08:02] Speaker 01:
The allegation we make is that they are agents of FCA, which gets us into one of the exceptions of Illinois brick, and it's an exception that's recognized

[00:08:10] Speaker 01:
Even in the cases that go against us, the Carter case from the Seventh Circuit goes back to footnote 16 of Illinois brick and says, caution, you have to have a factual predicate for believing that there is somebody better positioned to sue.

[00:08:25] Speaker 01:
In this case, they are they're not going to bite the hand that feeds them.

[00:08:30] Speaker 01:
They are simply

[00:08:31] Speaker 01:
the agents of FCA.

[00:08:34] Speaker 01:
And if one looks at the history of Rico, there are no cases, no cases in which franchisees have sued on behalf of injured third parties.

[00:08:47] Speaker 01:
And if one looks at antitrust law, I can find no cases where franchisees have sued on behalf of the consuming public.

[00:08:57] Speaker 03:
There are cases where... But I don't think that's the analysis.

[00:09:00] Speaker 03:
It's suing on behalf of yourself as the directly injured party or the drug purchaser and obtaining trouble damages

[00:09:10] Speaker 03:
you know, satisfies the purposes of the statute, you know, as a deterrent effect and everything else.

[00:09:14] Speaker 03:
But I don't think someone needs to go sue on behalf of someone else.

[00:09:17] Speaker 03:
If you're suing on your own behalf for your own concrete injuries, that is the purpose of the statute.

[00:09:23] Speaker 01:
That's correct, Your Honor, but I was collapsing the Illinois brick because Illinois brick says

[00:09:27] Speaker 01:
we're going to visit all of these harms onto the direct purchasers, but even if they've passed it on.

[00:09:32] Speaker 03:
But you are raising examples of that you couldn't find anyone who would sued on behalf of someone else.

[00:09:38] Speaker 03:
What about examples of people suing on their own behalf as direct purchasers?

[00:09:41] Speaker 01:
I have found no cases in which franchisees have sued the franchisors for overcharges to themselves or anyone else.

[00:09:52] Speaker 01:
The only time this issue has come up in antitrust cases

[00:09:56] Speaker 01:
is when the manufacturer has said,

[00:09:59] Speaker 01:
as a defense, oh no, you have to sue the dealers.

[00:10:01] Speaker 01:
That's the only time it's come up.

[00:10:02] Speaker 01:
But there are no cases in which they actually affirmatively sue saying we were overcharged because it's a permanent ongoing relationship.

[00:10:12] Speaker 01:
It's realistically not going to happen.

[00:10:14] Speaker 02:
Well, Counselor, we were to go your way and find that Illinois BRICS analysis doesn't map on to RICO because of all of the arguments that you've raised.

[00:10:22] Speaker 02:
We would be the first circuit to say so, right?

[00:10:25] Speaker 02:
And creating a split with

[00:10:28] Speaker 02:
the third, the sixth, and I think the seventh as well have all gone the other way.

[00:10:35] Speaker 01:
I believe that the seventh circuit is more nuanced.

[00:10:39] Speaker 01:
It's not in the purchaser context.

[00:10:41] Speaker 01:
It would create a split with the sixth circuit and the third mildly because it was in the healthcare context.

[00:10:50] Speaker 01:
It's a little bit more complicated, the contractual relationships, but it would create

[00:10:55] Speaker 01:
a split with the Sixth Circuit.

[00:10:57] Speaker 01:
There's no question about that.

[00:10:58] Speaker 01:
The Sixth Circuit, we note, was relying on Chief Judge Sutton's Trollinger opinion, which predates all the relevant Supreme Court cases on this point.

[00:11:08] Speaker 01:
And so there would be a division between the courts.

[00:11:12] Speaker 01:
Yes, we have to acknowledge that, absolutely.

[00:11:16] Speaker 03:
I mean, I have to say, I'm reluctant to approach this case from

[00:11:21] Speaker 03:
policy balancing analyses.

[00:11:24] Speaker 03:
And what struck me when reading Holmes was that it started with the statutory hook, the statutory context of the identical language and the purpose behind the passage of the laws.

[00:11:35] Speaker 03:
before going on and adding justifications that were based on the policy considerations.

[00:11:41] Speaker 03:
Why isn't that enough to settle this case here?

[00:11:46] Speaker 01:
That's not the holding of Holmes.

[00:11:48] Speaker 01:
That's the observation of Holmes.

[00:11:50] Speaker 01:
The holding of Holmes is

[00:11:52] Speaker 01:
that the petitioner failed on proximate cause.

[00:11:55] Speaker 01:
And that's the analysis that we think should prevail here.

[00:11:59] Speaker 04:
But the Supreme Court has told us not to get off into policy.

[00:12:06] Speaker 04:
I mean, if you take California versus our America Corporation and you look at that, that was the issue in Illinois brick.

[00:12:13] Speaker 04:
But then they said the issue in Illinois brick is strictly a question of statutory interpretation.

[00:12:23] Speaker 04:
which was the proper construction of section four of the Clayton Act.

[00:12:29] Speaker 04:
So therefore they again, counsels, don't get off into policy.

[00:12:33] Speaker 04:
Look at the statutory construction.

[00:12:35] Speaker 04:
And that's frankly the reason I ask my questions to you.

[00:12:38] Speaker 01:
Your Honor, I think that Illinois brick would not satisfy modern conceptions of statutory interpretation.

[00:12:45] Speaker 01:
It is not compelled by the language.

[00:12:47] Speaker 01:
And the Supreme Court has cited to the Arita treatise as the authoritative.

[00:12:52] Speaker 04:
Sounds like a good argument to make to them, but I'm not sure with their with their control over me.

[00:12:58] Speaker 04:
That's a good argument to make to me.

[00:13:01] Speaker 04:
Well, I mean, I can appreciate that.

[00:13:03] Speaker 01:
Your Honor, if I can switch gears for one second, I want to get one argument out before my time is up.

[00:13:10] Speaker 01:
There is a portion of this case which is not governed by Illinois brick at all.

[00:13:14] Speaker 01:
At the end of the first paragraph of the district court's opinion, Judge Corley writes that we have a separate set of claims for what happened after the recall, not chain of sale questions, just that the cars were much more, or the trucks were much more expensive to operate because of the effect of the recall, that people lost the utility of them.

[00:13:36] Speaker 01:
That issue was raised in our complaint repeatedly.

[00:13:40] Speaker 01:
Judge Corley acknowledged it.

[00:13:42] Speaker 01:
It wasn't briefed by Appellee at all.

[00:13:45] Speaker 01:
And we think on that question, Illinois Brick has nothing to say about it.

[00:13:49] Speaker 01:
It's simply a harm that came from the misrepresentations and the fraud that's the pattern of fraud that's been perpetrated here.

[00:13:59] Speaker 01:
On that question, I think we have to prevail because there's no finding below as to why that's controlled by Illinois Brick or anything else.

[00:14:08] Speaker 03:
Meaning that you would satisfy the direct injury direct

[00:14:12] Speaker 01:
purchase yes yes at that point we're not we're not a perch that's not a purchase and you know that's just that's an injury in the office record didn't rule on it why should we well because we got dismissed on it so i understand and so and and we've appealed and there's been there's but that wouldn't be part of our interlocutory review because it's it's just confined to this to this narrow question isn't it it's part of our interlocutory review because it was on rico grounds and it was dismissed on rico grounds and therefore

[00:14:42] Speaker 01:
If it's not supported in the district court's opinion and not defended by appellee, she has to be reversed on that score.

[00:14:48] Speaker 01:
I think she just made a mistake.

[00:14:50] Speaker 01:
I think she thought of this as an Illinois brick case and just made a mistake on that particular point.

[00:14:58] Speaker 02:
All right, counsel, you're down to just about 20 seconds, but I'll put a couple of minutes back on the clock because I know, aspirationally, you wanted to save a few minutes.

[00:15:06] Speaker 01:
Thank you very much, Your Honor.

[00:15:11] Speaker 00:
Morning, your honors.

[00:15:12] Speaker 00:
Alan Schoenfeld for Cummins.

[00:15:14] Speaker 00:
If I can start where counsel for the plaintiffs left off, this argument that there are aspects of plaintiffs' RICO claim that fall outside of Illinois brick was categorically waived below.

[00:15:22] Speaker 00:
I would direct the court's attention to page 132 of the excerpts of records.

[00:15:26] Speaker 00:
Judge Corley didn't misunderstand anything about this.

[00:15:29] Speaker 00:
She explicitly asked counsel, let me see, because I had understood your argument to be this rules just not apply in the RICO context.

[00:15:36] Speaker 00:
And if it does apply, then we're out of luck.

[00:15:38] Speaker 00:
Are you actually saying something different?

[00:15:39] Speaker 00:
And counsel for plaintiffs said,

[00:15:41] Speaker 00:
No.

[00:15:42] Speaker 00:
Well, I guess what I'm saying is the rule does not apply.

[00:15:44] Speaker 00:
The indirect purchaser rule does not apply in the RICO context.

[00:15:47] Speaker 00:
Judge Corley then set in her motion to dismiss order, which is at page four of the records.

[00:15:51] Speaker 00:
The plaintiffs do not dispute that if Illinois brick applies to Civil Rico, their Rico claim fails.

[00:15:56] Speaker 00:
Instead, they urge Illinois brick should not apply.

[00:15:58] Speaker 00:
Then in pitching this as a clean question for 1292B certification, both in the district court and here, the only question put to this court was categorically, and I think they use that language both in their motion to certify in the district court and to this court,

[00:16:11] Speaker 00:
they pose it as a categorical question.

[00:16:17] Speaker 00:
And I think you can look at page two of their motion to certify and also their petition for interlocutory appeals.

[00:16:21] Speaker 00:
So this idea that there are aspects of that claim that fall outside of Illinois break, I think, is waived for purposes of the appeal to this court and probably below.

[00:16:29] Speaker 00:
But with respect to the substantive question that is before the court, to start where I think counsel on the other side was also leaving off,

[00:16:38] Speaker 00:
Congress used identical language in the antitrust laws in Rico to give a cause of action to a person injured in his business or property.

[00:16:45] Speaker 00:
And as I think counsel conceded on the other side, the Supreme Court has definitively interpreted that phrase in the antitrust laws to mean a direct purchaser and not an indirect purchaser.

[00:16:55] Speaker 00:
And the idea that this Supreme Court would reach a different conclusion, I think, is betrayed or belied by the court's decision in Apple versus Pepper.

[00:17:03] Speaker 00:
That is the presently constituted Supreme Court from 2019, with the exception of two justices who I don't think would depart from that reading.

[00:17:10] Speaker 00:
And you have a majority and a dissent in that case that are arguing over how strongly to interpret Illinois brick.

[00:17:16] Speaker 00:
And both of them, the majority and the dissenting opinion, say we are relying on the text of section four as conclusively interpreted by the court in both Hanover, Shoe, and Illinois brick, Kansas versus Utila Corp, and California, which your honor cited.

[00:17:31] Speaker 00:
So the sole question before this court is whether Congress meant the same thing when it used identical language in RICO, whose enforcement mechanism was modeled explicitly on the one in the antitrust laws.

[00:17:42] Speaker 00:
And I think faced with this identical language and statutes that were meant to parallel each other in meaningful respect, the canons of statutory construction require this court to adopt the same interpretation unless plaintiffs come up with exceedingly persuasive reasons

[00:17:56] Speaker 00:
why the same phrases mean different things in twin statutes.

[00:17:59] Speaker 03:
So what do we make of the Supreme Court's recent discussion in the medical marijuana case that the Clayton Act and RICO are not interchangeable?

[00:18:09] Speaker 00:
That last line in the first section of the majority opinion is simply describing Sedima.

[00:18:13] Speaker 00:
And I don't think there's any dispute that in Sedima, the Supreme Court said, these are not interchangeable for all purposes.

[00:18:19] Speaker 00:
In Sedima, the court simply reached the conclusion that the idea of racketeering injury

[00:18:23] Speaker 00:
had no parallel in antitrust entry.

[00:18:26] Speaker 00:
And it did that by looking at the text.

[00:18:28] Speaker 00:
The point is that where the text is identical, you reach the identical conclusion about its interpretation unless something else in the text or context of the statute

[00:18:37] Speaker 00:
compels a different conclusion.

[00:18:38] Speaker 00:
And so in the antitrust laws, there's good reason for articulating or imposing an antitrust injury requirement.

[00:18:45] Speaker 00:
And that goes back to Pueblo, where the Supreme Court had to sort of reckon with the gap between section seven of the Sherman Act and section four of the Clayton Act.

[00:18:53] Speaker 00:
And there's no parallel in RICO.

[00:18:54] Speaker 00:
And so of course, the court reached the conclusion in Sedima that there was no freestanding RICO requirement.

[00:18:59] Speaker 04:
Those are- But in that case, as I understand what you're saying, and I'm just trying to make sure,

[00:19:06] Speaker 04:
The court looked at the text of the statutes and made their distinction based on the text.

[00:19:16] Speaker 00:
based on the text, but not on the language of section four.

[00:19:19] Speaker 00:
It's not like in Sedima, the court said there's any difference between the language of section four and the antitrust laws in 1964C in Rico.

[00:19:26] Speaker 00:
They said the court has previously imposed an antitrust standing requirement for reasons that are explained, I think, in Pueblo and other cases.

[00:19:34] Speaker 00:
Do we find any parallel in Rico?

[00:19:37] Speaker 00:
And the court said no, there's nothing in 1964C or in the broader context that compels that construction.

[00:19:44] Speaker 00:
And so the court said,

[00:19:45] Speaker 00:
These statutes taken as a whole are not interchangeable, of course, but that doesn't answer the question of whether 1964 C should be interpreted.

[00:19:52] Speaker 04:
The reason I questioned is because it seemed to me that what counsel is arguing is that there's kind of a different policy involved.

[00:20:02] Speaker 04:
in why Sedema came out a different way.

[00:20:05] Speaker 00:
I disagree with that, and I think that Holmes offers that explanation.

[00:20:08] Speaker 00:
And Holmes, you have the court starting with the identical text and essentially saying under the guise of its proximate cause analysis, these are the same policy rationales that animated Illinois brick.

[00:20:17] Speaker 00:
I don't think it's any surprise that the separate rules of statutory standing, of which Illinois brick is a part, and proximate cause, both have their derivation in proximate cause principles that I think the court recognized in Hanover shoe were imported from law that had been on the books.

[00:20:32] Speaker 00:
They trace it back to the Supreme Court's 1918 decision in Darnell Tanzer.

[00:20:36] Speaker 00:
And so they both have similar genesis, but they serve different purposes.

[00:20:40] Speaker 00:
And the fact that- Can I ask?

[00:20:44] Speaker 03:
approximate cause comes from the by reason of phrase.

[00:20:47] Speaker 03:
Does statutory standing come from that phrase as well or does it come from some other part of the statutory?

[00:20:53] Speaker 00:
So the statutory standing, and I think the court has said this as it has reiterated the statutory holding, it is a definition of who is injured in his business or property.

[00:21:04] Speaker 00:
And so I think the court refers to that language in Kansas versus Utila Corp, in Apple versus Pepper, but it locates

[00:21:12] Speaker 00:
the standing requirement and Illinois Break as a part of that in that language of the statute.

[00:21:17] Speaker 00:
So they have two different statutory hooks.

[00:21:20] Speaker 00:
I think the concepts animating those similar readings are the same.

[00:21:24] Speaker 00:
And if you look at the portion of Darnell Tanzer that the Supreme Court quoted in Hanover Shoe, it says two things.

[00:21:32] Speaker 00:
First thing it says is, there's an accepted principle of proximate causation that you don't go beyond the first step in damages.

[00:21:37] Speaker 00:
But then it's very careful to go further, and it quotes the case to say, the carrier ought not to be allowed to retain his illegal property, and the only one who can take it from him is the one that alone was in relation to him.

[00:21:53] Speaker 00:
In other words, in Hanover Shoe, this is footnote eight, the Supreme Court was clear that these are two rules on flip sides of the same coin.

[00:22:01] Speaker 00:
They derive from the same

[00:22:03] Speaker 00:
what Justice Gorsuch called ancient rules of proximate causation and Apple versus Pepper.

[00:22:07] Speaker 00:
But they manifest in RICO, just as they do in antitrust law, in two distinct requirements, one of statutory standing and one of proximate causation.

[00:22:15] Speaker 00:
And the fact that those two things are different is commonplace in the law.

[00:22:18] Speaker 00:
This court's decision in County of Oakland or City of Oakland versus Wells Fargo addresses the distinction between statutory standing and proximate cause as two distinct requirements, I think, in that case of the FHA.

[00:22:29] Speaker 00:
And Judge Sutton's decision in Trollinger, I think, goes through this at great length

[00:22:33] Speaker 00:
to explain that they serve different functions.

[00:22:35] Speaker 00:
Statutory standing and Illinois break play a critical gating function at the motion to dismiss stage, whereas proximate causation is down the line and a much more fact-intensive notion.

[00:22:45] Speaker 00:
But the fact that they have the same sort of point of genesis, I don't think, is simply what animates the way the court approach the language in those cases.

[00:22:54] Speaker 00:
I apologize, was I?

[00:22:55] Speaker 02:
Oh no, I was going to ask you, but to finish that thought, go ahead.

[00:22:59] Speaker 02:
I think I'm done.

[00:23:00] Speaker 02:
I was going to ask you what's happening with the remaining claims.

[00:23:03] Speaker 02:
Is litigation progressing below, or has everything been stayed waiting, this decision?

[00:23:07] Speaker 00:
No, very actively litigating below.

[00:23:09] Speaker 00:
Discovery is ongoing into the many state claims that Judge Corley allowed to proceed.

[00:23:14] Speaker 00:
Class certification briefing begins in May.

[00:23:16] Speaker 00:
So the case is actively going forward on the remaining state law claims, both as against Cummins and against FCA.

[00:23:25] Speaker 02:
But May is when you expect the class certification issued to be

[00:23:28] Speaker 00:
brought before the district court the motion will be filed in may it won't be fully briefed until the I think the summer of the early fall.

[00:23:38] Speaker 00:
I'm happy to answer any other questions the court has or to rest on our briefs any additional questions just inches no no thanks very much thank you very much council.

[00:23:56] Speaker 01:
Thank you, Your Honor.

[00:23:57] Speaker 01:
Let me pick up directly where Judge Sanchez, the question you asked, Your Honor.

[00:24:05] Speaker 01:
The approximate cause analysis.

[00:24:07] Speaker 01:
is part of the by reason of.

[00:24:10] Speaker 01:
And the statutory standing is also derived from by reason of.

[00:24:15] Speaker 01:
And this court's opinion in Canyon County and in Mendoza both use the by reason of to define statutory standing and to define proximate cause.

[00:24:30] Speaker 01:
And so I think it is the same inquiry that the statutory standing under the language of under the opinions of this court turns on the question of proximate cause.

[00:24:40] Speaker 01:
I think that's what Holmes says also.

[00:24:43] Speaker 01:
I think that's why Mendoza invokes Holmes for this purpose.

[00:24:47] Speaker 01:
I think that that's why we have to prevail here because

[00:24:50] Speaker 01:
If there is a proximate cause inquiry, then what follows from that is, are we the best positioned to enforce the recovery?

[00:25:01] Speaker 01:
And our argument, as I mentioned before, is that we are the only party capable of doing so.

[00:25:06] Speaker 01:
Is there a risk of double recovery of apportionment?

[00:25:09] Speaker 01:
No, because the dealers will never make claims under the facts presented and critically under the facts alleged in paragraph 75 of the

[00:25:18] Speaker 01:
of the complaint, and we're still on a motion to dismiss, but the facts alleged is that they took their operating orders and they are entirely dependent, they are the agents.

[00:25:27] Speaker 01:
Agency has a particular legal meaning.

[00:25:30] Speaker 01:
They are the agents of FCA here, one of the alleged co-conspirators.

[00:25:36] Speaker 03:
But even if plaintiffs are barred from pursuing this particular claim, there's a $1.8 billion fine that came from agency regulation.

[00:25:46] Speaker 01:
Only for the environmental harms, not for any of the harms that are alleged here.

[00:25:53] Speaker 03:
I see.

[00:25:54] Speaker 03:
But at least with the state law claims, there are alternate avenues of potential deterrent for some of these allegations that have been raised, even if Rico is not one of them.

[00:26:06] Speaker 01:
That is that is correct, Your Honor.

[00:26:08] Speaker 01:
And there may be claims brought by other people in other states who don't have access to the California state claims.

[00:26:15] Speaker 01:
And so I think that the Rico issue is a live issue before this court.

[00:26:19] Speaker 01:
And as Judge Nguyen indicated, this has been

[00:26:22] Speaker 01:
a subject of tremendous controversy in the court, what the Fourth Circuit says.

[00:26:27] Speaker 01:
The courts are all over the place on this question.

[00:26:29] Speaker 01:
So I think it's incumbent on this court to address this question, even though, as counsel opposite acknowledged, active litigation goes forward, and there's all sorts of activity before the district court.

[00:26:42] Speaker 02:
All right.

[00:26:42] Speaker 02:
Thank you very much.

[00:26:43] Speaker 01:
Thank you.

[00:26:43] Speaker 02:
We really appreciate both sides' argument presented this morning.

[00:26:46] Speaker 02:
The matter is submitted.