[00:00:02] Speaker 01:
Okay, if counsel are ready for our last case, Pharmaceutical Research and Manufacturers of America versus Andrew Stolfi.

[00:00:12] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
May it please the court, Pinesh Shah for the Oregon Department of Consumer and Business Services, asking this court to reverse the district court's grant of summary judgment, both on the compelled speech claim and on the takings claim.

[00:00:23] Speaker 04:
And although I'm very happy to accommodate redirection from the court, I'd like to start with a compelled speech issue.

[00:00:28] Speaker 04:
On that issue, much of what I have to say today circles around the same fundamental idea.

[00:00:32] Speaker 00:
Would you slow down just a bit?

[00:00:34] Speaker 04:
Yes, Your Honor.

[00:00:35] Speaker 04:
I will try.

[00:00:35] Speaker 04:
It's a problem that I have.

[00:00:37] Speaker 04:
I will certainly try.

[00:00:38] Speaker 04:
And the same fundamental idea that's at issue here is that what this case is about is the reporting of historical facts, not the kind of expression that implicates the First Amendment.

[00:00:52] Speaker 00:
Don't you ask them to tell you about their strategy as to pricing, the factors that go into their pricing?

[00:01:03] Speaker 04:
How is that historical fact?

[00:01:08] Speaker 04:
Whatever strategy they may have used are the factors that... It's the same thing as if in a trial you ask somebody, why did you enter into a contract?

[00:01:19] Speaker 04:
That's a historical fact.

[00:01:20] Speaker 00:
Well, you can ask a witness why did you enter into a contract because he's compelled to testify by the state.

[00:01:28] Speaker 00:
These people are not compelled to give you information.

[00:01:31] Speaker 04:
Well, Your Honor, the question, we're saying this is compelled commercial speech.

[00:01:36] Speaker 04:
And so if it's compelled and whether that compulsion is permissible is answered by Zadar.

[00:01:42] Speaker 04:
But at the outset, our point is this is not factual.

[00:01:45] Speaker 04:
I mean, I'd rather that it is factual.

[00:01:47] Speaker 00:
The strategy on pricing is factual.

[00:01:50] Speaker 00:
It is not subjective and given to a bunch of

[00:01:54] Speaker 00:
non-historical factors such as fashion and acceptability and what other people are doing?

[00:02:05] Speaker 04:
It is, Your Honor, subjective.

[00:02:06] Speaker 04:
But why a person did a thing in the past is not subjective.

[00:02:09] Speaker 04:
That is objective.

[00:02:10] Speaker 04:
A person can have subjective motivations for doing something, but when they ultimately do the thing, why they did it is a question of objective and historical fact.

[00:02:20] Speaker 00:
Why they did it?

[00:02:21] Speaker 00:
Correct, Your Honor.

[00:02:25] Speaker 00:
They did it.

[00:02:27] Speaker 04:
Correct, Your Honor.

[00:02:27] Speaker 04:
I think so.

[00:02:28] Speaker 04:
That is a question of historical fact, just like so many questions of historical fact that are resolved at trial on which this court would defer to the fact finder, because those are questions of historical fact rather than questions of law.

[00:02:41] Speaker 02:
Can you give an example of what the agency would consider to be a satisfactory response

[00:02:51] Speaker 02:
to that question about the factors that, I can't remember the exact wording, but led to the specific price increase.

[00:03:01] Speaker 02:
How explanatory does it have to be?

[00:03:03] Speaker 02:
Has this been fleshed out?

[00:03:04] Speaker 02:
Could it just be something as straightforward as a list, supply cross increase, I don't know, research costs, and investor return?

[00:03:20] Speaker 04:
I think that would be sufficient, Your Honor, if that is in fact, you know, if that explains the price increase.

[00:03:26] Speaker 02:
As long as it's accurate, factual, truthful, that's enough.

[00:03:30] Speaker 02:
Correct, Your Honor.

[00:03:31] Speaker 02:
That level of detail.

[00:03:32] Speaker 04:
Yes, Your Honor.

[00:03:36] Speaker 01:
Can you explain why ex-corp B. Bonta is materially different from this case?

[00:03:41] Speaker 04:
So first, I think that the regulatory context is very different, because what XCorp was in the business of doing was sort of being a forum for expression.

[00:03:52] Speaker 04:
That's a very different context from the business of manufacturing and selling pharmaceuticals.

[00:03:57] Speaker 04:
So already there's a very different sort of First Amendment overlay between these two cases.

[00:04:02] Speaker 04:
And then the specific

[00:04:06] Speaker 04:
speech or what the law required in X-Corp, again, pertain to expressive conduct and also things that were in fact subjective, such as a definition of extremism, a definition of hate speech.

[00:04:19] Speaker 04:
Those things are subjective.

[00:04:20] Speaker 04:
Those are not questions of historical fact.

[00:04:23] Speaker 04:
And not only are they subjective and not questions of historical fact, they are incredibly partisan and politically fraught.

[00:04:34] Speaker 04:
Particularly, again, when it's in the context of an industry that is engaged in being a forum for expression, that is all expressive conduct.

[00:04:42] Speaker 04:
Very different from this situation where we have a non-expressive industry reporting historical facts about financial data and pricing.

[00:04:52] Speaker 02:
While we're on the question of facts versus opinion, I had a question about the, for I think it's the new drugs that there's a requirement to provide an estimate of the expected prescriptions.

[00:05:09] Speaker 02:
I could argue that an estimate of expected prescriptions

[00:05:13] Speaker 02:
maybe an opinion or something, you know, it starts to get into, I mean, is that a fact?

[00:05:19] Speaker 02:
I suppose if they had one, you could say, if you made an estimate, what was it?

[00:05:23] Speaker 02:
But are they allowed to just say, we don't have one, we don't want one, or, you know, we are unable to make one?

[00:05:29] Speaker 02:
I mean, that one I find a little bit tricky in terms of it doesn't seem to be asking for a historical fact.

[00:05:35] Speaker 04:
Correct, Your Honor, though to the extent that they have made estimates in the past, whatever their past estimates were are a historical fact.

[00:05:43] Speaker 02:
Right, but that's not exactly what the statute seems to be asking for.

[00:05:47] Speaker 04:
And then, of course, I think there's this other point that none of this is expressive.

[00:05:52] Speaker 04:
There's no message being conveyed when somebody is asked to make a sort of market assessment.

[00:06:00] Speaker 01:
But also, the new prescription drug statute wasn't challenged, right?

[00:06:06] Speaker 01:
That's C6.

[00:06:08] Speaker 01:
And it seems like the only thing at issue here is three, right?

[00:06:13] Speaker 04:
That's right, Your Honor.

[00:06:14] Speaker 01:
And I guess what confused me is that the summary judgment

[00:06:18] Speaker 01:
motion before Judge Mosbin was all briefed on specifically 3C, the factors that contributed to the price increase, but he entered the judgment as to all of three, even though it looks like you didn't brief 3A, B, D, E, F, A, B, C, D, G, H, et cetera.

[00:06:40] Speaker 01:
Is that right?

[00:06:41] Speaker 04:
That's right, Your Honor.

[00:06:42] Speaker 04:
And in fact, really the briefing didn't even, it focused on just one element of the rule.

[00:06:46] Speaker 04:
It focused on just one element of the rule, which was the narrative statement section of the rule, and that rule has a number of other sections that were not litigated, that were also struck down.

[00:06:58] Speaker 01:
What sections are you referring to?

[00:07:00] Speaker 01:
Can you give a specific number?

[00:07:02] Speaker 04:
So I can tell you that the like I could go get the rule or I could tell you that you can on rebuttal just sure.

[00:07:08] Speaker 04:
Yes, your honor.

[00:07:08] Speaker 01:
Tell us what what it is.

[00:07:10] Speaker 01:
If we determine that declaratory relief isn't available for the techie takings claim, do we need to reach the merits of that claim?

[00:07:18] Speaker 04:
I don't think so, your honor.

[00:07:20] Speaker 04:
I think particularly if you agree that the reason the declaratory relief isn't available is because there's no injury in fact, if the claim just simply isn't ripe at this juncture.

[00:07:33] Speaker 02:
The takings issue, as far as I know, it's still an open question in whether even a facial claim is possible for a regulatory taking, assuming that this pencentral applies here.

[00:07:47] Speaker 02:
There's been a lot of direction from the Supreme Court about properly assessing facial challenges.

[00:07:56] Speaker 02:
And then I think there's a lot of overlap with rightness considerations here.

[00:08:02] Speaker 02:
One of the things that

[00:08:06] Speaker 02:
I'm trying to figure out is whether we can really assess whether there, I mean, as a threshold matter, my understanding is there's a question of state law as to whether there is even a property interest in a trade secret.

[00:08:23] Speaker 02:
And the Supreme Court in Reckles House said that is a function of state law because the federal constitution does not create property rights.

[00:08:31] Speaker 02:
I've tried to figure out it wasn't, as far as I can tell, addressed in the briefing.

[00:08:35] Speaker 02:
Does Oregon create a cognizable property right in trade secret?

[00:08:41] Speaker 02:
And there is case law, for example, Stimson Lumber Company versus Lawrence David, where the Oregon court said essentially they reject the property theory of trade secrets and they think it arises only from a relationship of trust.

[00:09:00] Speaker 02:
So as a threshold matter, I think there's a question of state law that has not been fully developed, unless you are aware of an Oregon interpretation or statute that says trade secret is a property right in the state of Oregon.

[00:09:16] Speaker 04:
I'm sure my opponent will have plenty to say about this, but I'm not familiar with the case you cited, Your Honor, but I wonder if it predates the statutory enactment of Oregon's version of the Uniform Trade Secret Act.

[00:09:28] Speaker 02:
Well, my trouble there is, first, the Trade Secret Act.

[00:09:32] Speaker 02:
The definition that was adopted in this law is not actually coincide with the Trade Secret Act.

[00:09:37] Speaker 02:
It bars from the Public Records Law instead.

[00:09:39] Speaker 02:
And those definitions of trade secret are not actually identical.

[00:09:44] Speaker 02:
So then there's a, I guess, then would you be conceding then that the Trade Secret Act creates a property interest?

[00:09:53] Speaker 04:
I will concede that trade secrets as recognized in the Oregon Trade Secret Act creates property interests, but subject to the public interest disclosure requirements that are contained in the Oregon Public Records Law and have been since before the Trade Secrets Act was created.

[00:10:11] Speaker 01:
Okay.

[00:10:13] Speaker 01:
So you're not disputing whether trade secrets as defined in HB 4005 qualifies as property under Oregon law?

[00:10:21] Speaker 04:
I'm not disputing that, your honor.

[00:10:22] Speaker 04:
But again, that is subject to whatever else exists.

[00:10:28] Speaker 01:
How do you, for the pencentral factors, can you elaborate on the economic impact of the regulation, how you would define the value of the property as a whole?

[00:10:40] Speaker 04:
I think that's a difficult question to answer, Your Honor, when we don't even know that what trade secret has been taken.

[00:10:46] Speaker 04:
It very much depends on what the trade secret is, and that simply cannot be assessed in this facial challenge where there has not been a taking or an injury, in fact.

[00:10:53] Speaker 01:
I guess, I guess I'm just wondering, is a trade secret, and I'm sorry to interrupt you, is it, you know, is trade secret relatively unimportant to the value of the drug overall?

[00:11:01] Speaker 01:
Like, are we talking about marketing trade secrets?

[00:11:04] Speaker 01:
Are we talking about advertising trade secrets?

[00:11:07] Speaker 01:
Like, what, do you understand?

[00:11:08] Speaker 04:
I understand your question, Your Honor.

[00:11:09] Speaker 01:
I wish I knew.

[00:11:11] Speaker 04:
It's not clear what, what particular types of trade secrets pharma is concerned about here.

[00:11:16] Speaker 00:
Well, I think they're concerned about their pricing strategy.

[00:11:18] Speaker 00:
And once that trade secret is made known to their competitors, it loses its value, doesn't it?

[00:11:25] Speaker 04:
I don't understand their trade secret.

[00:11:27] Speaker 00:
You're only disclosing it.

[00:11:28] Speaker 00:
But you're disclosing it to their rivals.

[00:11:31] Speaker 04:
I don't understand their trade secret claim to be focused on the same material that's at issue in the First Amendment claim.

[00:11:37] Speaker 04:
Those are two separate claims, as I understand them, Your Honor.

[00:11:39] Speaker 04:
And so I don't know that they've identified a particular trade secret disclosure that they consider to be a taking.

[00:11:45] Speaker 00:
Oh, that's not the way I see it, but go ahead.

[00:11:47] Speaker 04:
So if we assume that that's the trade secret that we're talking about, the pricing strategy, well, I think the first answer to this question is that under state law and under Ruckelshaus, there is no protection for trade secrets if there's no express guarantee, if you disclose it without an express guarantee of confidentiality.

[00:12:07] Speaker 04:
And so any disclosure here

[00:12:09] Speaker 04:
will be made knowing that what you disclose is subject to the public interest exception and can be disclosed to the public.

[00:12:18] Speaker 04:
And so that destroys the trade secret nature of this.

[00:12:22] Speaker 04:
And if they don't want to do this, just like in Ruckel's house, they can decide not to sell their products in Oregon.

[00:12:27] Speaker 01:
but that organ has not disclosed any of the trade secrets that have been identified by any of the reporting manufacturers correct that is correct your and there's no present intent to disclose any of the

[00:12:40] Speaker 01:
self-identified trade secrets provided by the manufacturers, correct?

[00:12:43] Speaker 04:
I'm not aware of any present intent.

[00:12:45] Speaker 02:
What would the process be?

[00:12:46] Speaker 02:
So I understand there is a process for appealing a disagreement about whether the information at issue is a trade secret under Oregon law.

[00:12:56] Speaker 02:
Then is there also a process for disputing or appealing a determination that disclosure is required under the public interest exception?

[00:13:04] Speaker 04:
I think that would likely qualify for review as a final agency action under the Oregon Administrative Procedures Act.

[00:13:11] Speaker 02:
Okay.

[00:13:11] Speaker 02:
And then what about the compensation if there was a determination that there was a, in fact, under law, a trade secret that was then disclosed

[00:13:23] Speaker 02:
What would be, is there a mechanism under Oregon law for compensation?

[00:13:27] Speaker 02:
What is that?

[00:13:29] Speaker 04:
Oregon courts regularly entertain inverse condemnation actions.

[00:13:34] Speaker 04:
And so that would be certainly available in this case if there was a claim for a taking.

[00:13:44] Speaker 01:
OK.

[00:13:44] Speaker 01:
Let me ask you.

[00:13:44] Speaker 01:
Pharmaceuticals are a highly regulated industry.

[00:13:50] Speaker 01:
Why do manufacturers have reasonable expectations of confidentiality, and are there different expectations if it's manufacturing versus marketing?

[00:13:59] Speaker 01:
Are there different sort of expectations or levels of confidentiality expectations based on the specific category of information?

[00:14:08] Speaker 04:
I think yes, Your Honor.

[00:14:10] Speaker 04:
I think also that's governed by how they interact with the regulatory framework, which again returns me to this idea from Ruckelshaus that if you engage voluntarily with a regulatory framework that asks you to disclose information, and you choose to voluntarily disclose that by doing business, and there's no express guarantee of confidentiality, then that should be dispositive.

[00:14:32] Speaker 04:
It was in Ruckelshaus, and it is here.

[00:14:38] Speaker 04:
And so unless the court has questions now, I'd like to save the rest of my time for rebuttal.

[00:14:42] Speaker 00:
You want to address the question of substitution.

[00:14:46] Speaker 00:
Do you think it's permissible to ask the manufacturer what generic drug that sells at a lower price than yours can be easily substituted for your product?

[00:15:00] Speaker 04:
So again, that particular part of the law was not briefed or challenged below, as I understand it.

[00:15:07] Speaker 04:
But to answer your question, Your Honor, that is permissible.

[00:15:15] Speaker 04:
That is the kind of commercial speech that can be assessed under Zodder.

[00:15:18] Speaker 04:
And if there's a substantial government interest in understanding those factors, then yes, it can be compelled.

[00:15:27] Speaker 04:
And what little time I have.

[00:15:28] Speaker 01:
Is the name of generics on the market just publicly available information?

[00:15:32] Speaker 04:
I think in many cases it is.

[00:15:33] Speaker 04:
I think much of this information, in fact, is disclosed in other situations.

[00:15:37] Speaker 04:
I think there's a declaration in the SCR from an agency employee talking about how much of the stuff that has been claimed as straight secret has been disclosed in SEC filings and in other public filings.

[00:15:47] Speaker 04:
So, yes, much of this information is, in fact, actually available.

[00:15:49] Speaker 01:
But for SEC filings, you only referred to executive compensation, right?

[00:15:54] Speaker 01:
What other disclosures in SEC filings do you think would have been?

[00:15:58] Speaker 01:
illustrative here of what's permissible in other contexts.

[00:16:02] Speaker 04:
When I was talking about executive compensation in my brief, Your Honor, I was just speaking by way of analogy, but there is, I'll try to find it for rebuttal, in our in our ER declaration from somebody named, I think, Susie or Ducey, explaining specifically the kinds of disclosures that farmers members have made to the SEC and other regulatory bodies that cover much of the same stuff that they're claiming as trade secrets.

[00:16:26] Speaker 01:
Okay.

[00:16:27] Speaker 01:
I would be interested in knowing what that is.

[00:16:29] Speaker 01:
So please bring that back on rebuttal.

[00:16:32] Speaker 04:
And if the court will allow me some time on rebuttal, then I will be minutes.

[00:16:34] Speaker 01:
Thank you.

[00:16:35] Speaker 01:
Thank you.

[00:16:47] Speaker 01:
Go ahead, please.

[00:16:48] Speaker 03:
Thank you, Your Honor, and may it please the Court, Alon Kettum, for Pharmaceutical Research in Manufacturers of America.

[00:16:54] Speaker 03:
HP 4005 compels drug manufacturers to justify their own pricing decisions by writing reports exposing some of the most sensitive and closely guarded information they use to make research and development, production, and marketing decisions.

[00:17:08] Speaker 03:
The state then publishes that information on the internet, destroying manufacturers' trade secrets whenever the state's agency decides that doing so is in the public interest.

[00:17:18] Speaker 02:
That's not actually happened yet, ever, though.

[00:17:20] Speaker 03:
It hasn't, although there was a really interesting exchange in the district court argument where the court asked the state why it was that no disclosures had been made, despite the fact that the public interest exception is mandatory.

[00:17:34] Speaker 03:
At page 137 of the excerpts of record, there's a declaration

[00:17:37] Speaker 03:
explaining that the state considers publication under the public interest exception mandatory whenever a trade secret meets the qualifications.

[00:17:46] Speaker 03:
And what the state was asked is, is it possible that this litigation is the reason that you haven't made any of these disclosures?

[00:17:53] Speaker 03:
And counsel for the state admitted that that was in fact possible.

[00:17:56] Speaker 03:
So this goes, I think, to the question, can there be a facial challenge?

[00:18:01] Speaker 03:
There is no question the statute is mandatory.

[00:18:04] Speaker 03:
There are implementing regulations that are also mandatory.

[00:18:07] Speaker 03:
And the state submitted a declaration from someone who implements the law saying that there is no choice in the matter.

[00:18:13] Speaker 03:
This was also a finding made by the district court, I think, at page 13 of the excerpts of record.

[00:18:17] Speaker 01:
Let me ask you.

[00:18:17] Speaker 01:
I have a little bit of concern about how this was litigated.

[00:18:20] Speaker 01:
Your motion for summary judgment only challenged 3C.

[00:18:24] Speaker 01:
and yet you sought a declaratory judgment for all of three without briefing or litigating or having oral argument on A, C, D, E, G, H, I, J, K, L, everything that's implicated.

[00:18:38] Speaker 01:
Don't you think that's an over broad declaratory judgment?

[00:18:41] Speaker 01:
If there was no briefing, it wasn't argued, and you only address C.

[00:18:45] Speaker 03:
So hopefully I can reassure you, there was, in fact, separate briefing.

[00:18:49] Speaker 03:
After the oral ruling by the district court, he invited the parties to separately brief the scope of the remedy.

[00:18:55] Speaker 03:
And the central dispute between the parties on this issue was whether it should only lead to invalidation of subsection C or the others.

[00:19:02] Speaker 01:
But the declaratory judgment order doesn't have any analysis.

[00:19:05] Speaker 01:
The only analysis is the summary judgment one, and it only

[00:19:11] Speaker 01:
Sorry, analyzes 3C, correct?

[00:19:14] Speaker 03:
So I think I would disagree with you in this respect.

[00:19:17] Speaker 03:
In the written ruling that the district court issued, he said that the state had forfeited any argument that there could be a severance between subsection C and the rest of the statute.

[00:19:27] Speaker 02:
But there are other considerations, including constitutional considerations about state authority.

[00:19:35] Speaker 02:
that require us to consider severability.

[00:19:38] Speaker 03:
Even if this court decides it was an abuse of discretion for that or other reasons, the rationales apply more broadly.

[00:19:45] Speaker 03:
And that actually goes to the ExCorp versus Bonta case, which I think it's worth diving into, because there the court said, and this is at, I believe, page

[00:19:56] Speaker 03:
three of the slip opinion, that even a pure transparency measure, meaning a measure requiring disclosure of existing information, if it compels non-commercial speech, is subject to strict scrutiny.

[00:20:08] Speaker 03:
So even with respect to all of those other purely historical elements, it would still have to satisfy strict scrutiny, which the state hasn't even attempted to satisfy here.

[00:20:17] Speaker 01:
But how does this law require manufacturers to express any normative views?

[00:20:21] Speaker 01:
I mean ex-BONTA, it required

[00:20:24] Speaker 01:
X to basically define hate speech, racism, extremism, radicalization, disinformation, misinformation, harassment, foreign political interference.

[00:20:38] Speaker 01:
So how is that analogous?

[00:20:41] Speaker 03:
So I think it's analogous.

[00:20:42] Speaker 03:
In footnote nine of the Bonta decision, the court said that the state there argued the same thing.

[00:20:48] Speaker 01:
No, actually, let me take a different tack.

[00:20:50] Speaker 01:
Walk me through section three and tell me which ones are normative and which ones are noncommercial speech.

[00:20:58] Speaker 00:
OK?

[00:20:59] Speaker 01:
So you've got a declaratory judgment on all of these.

[00:21:02] Speaker 01:
Right?

[00:21:02] Speaker 01:
So let's talk about the length of time the prescription jug has been on the market.

[00:21:06] Speaker 01:
What is normative about that, and what is non-commercial speech about that?

[00:21:11] Speaker 03:
That's not normative, but none of it is commercial speech.

[00:21:14] Speaker 03:
And if I could just take you back to the export... Okay, well let's just figure out the normative first.

[00:21:18] Speaker 01:
Okay, so you say that's not normative.

[00:21:21] Speaker 01:
What about the direct costs incurred by the manufacturer?

[00:21:25] Speaker 01:
Is that normative?

[00:21:26] Speaker 03:
So there are a lot of value judgments that go into how you determine whether costs get factored in.

[00:21:31] Speaker 03:
Keep in mind for these drugs... So that is normative?

[00:21:34] Speaker 01:
It's just a question.

[00:21:35] Speaker 01:
Is that normative?

[00:21:35] Speaker 03:
So it involves normative judgments, yes.

[00:21:38] Speaker 03:
And keep in mind for... It involves judgment.

[00:21:41] Speaker 02:
Why are they normative?

[00:21:42] Speaker 03:
Why are they normative judgments?

[00:21:44] Speaker 03:
So there are questions about how you attribute, let's say you do a bunch of research on a number of molecules, or you do safety research for something, not specifically this drug, but includes one of the components.

[00:21:54] Speaker 03:
How do you decide about whether you factor those costs in?

[00:21:58] Speaker 03:
Or let's say you have patient assistance programs or other things.

[00:22:01] Speaker 03:
The question is, do you absorb those costs?

[00:22:03] Speaker 03:
Do you consider that just a cost of doing business?

[00:22:06] Speaker 03:
Or is it something that the company decides that it's doing because it just wants to help patients?

[00:22:10] Speaker 02:
That seems more of a question of how we would define a direct cost, which again, maybe part of what troubles me about this facial challenge is there's a lot of assumptions being made about how this law is being interpreted and applied.

[00:22:27] Speaker 02:
We're not supposed to interpret the law as broadly as possible and then strike it down.

[00:22:33] Speaker 02:
In fact, we're supposed to do the opposite.

[00:22:36] Speaker 02:
If there's a constitutional interpretation, we're supposed to adopt it.

[00:22:40] Speaker 03:
Yeah, so two things.

[00:22:41] Speaker 03:
First, even if you were to decide that all of this, despite the fact that there are value judgments or judgments involved, they're not value judgments.

[00:22:49] Speaker 03:
That's not the definition of commercial versus non-commercial speech.

[00:22:53] Speaker 03:
In X-Corp versus Bonta, this court reaffirmed the traditional definition of commercial speech as advertising.

[00:22:59] Speaker 02:
But you can't wipe out all the prior cases that found things like health and safety warnings and even know-your-rights information or commercial speech.

[00:23:09] Speaker 03:
So respectfully, it wasn't that the compelled disclosures that that part of it was commercial.

[00:23:15] Speaker 03:
It's that they were alongside commercial speech.

[00:23:17] Speaker 03:
So take, for instance, the case that required disclosure of radiation risk for cell phones.

[00:23:22] Speaker 03:
It's not that that was itself commercial speech.

[00:23:25] Speaker 03:
It's that they were advertising the cell phones, and on the box it said, come by the cell phone.

[00:23:30] Speaker 03:
It's great.

[00:23:30] Speaker 02:
I understand your argument is about the context in which the speech is being made.

[00:23:34] Speaker 02:
But then I run square into Riley's, where the Supreme Court said,

[00:23:39] Speaker 02:
We're going to assume that the compelled disclosure, they assumed it without deciding, is commercial speech.

[00:23:46] Speaker 02:
And that was very similarly about profit of professional solicitors, fundraisers, how much fees they would keep from donations that they successfully got.

[00:24:00] Speaker 02:
And the court said you can't force them to intertwine that disclosure with the

[00:24:08] Speaker 02:
protected solicitation.

[00:24:10] Speaker 02:
But as a general rule, the state can compel these professional fundraisers to file the same exact information in detailed reports with the state and publish them itself.

[00:24:24] Speaker 02:
And that would actually cure the problem.

[00:24:27] Speaker 02:
The court said that would be narrowly tailored to the state's interest in informing the public.

[00:24:33] Speaker 02:
So what do we do with that?

[00:24:35] Speaker 03:
So I think that's a classic zatterer situation in which someone is advertising a service to the public.

[00:24:41] Speaker 03:
They say, we're going to take your money and do something good with it.

[00:24:44] Speaker 03:
And then there's a disclosure about the nature of the thing that you are offering.

[00:24:48] Speaker 03:
So are you, in fact, going to use my money in a valuable way?

[00:24:53] Speaker 03:
Here, the type of information being required is of a completely different nature.

[00:24:57] Speaker 03:
It has nothing to do with the terms under which the product is being offered to the public.

[00:25:01] Speaker 03:
The public already knows what's in the mall.

[00:25:04] Speaker 03:
Pardon me.

[00:25:04] Speaker 02:
I mean, I guess I see that how much of the money you donate, am I going to pocket for myself, is very similar to the pricing information that's being requested here.

[00:25:16] Speaker 03:
So respectfully, I have to disagree.

[00:25:18] Speaker 03:
When you give money to a charity, you want to know what's going to happen to the money that you give.

[00:25:22] Speaker 03:
It's an essence of what it is that you are giving the money to the charity for.

[00:25:27] Speaker 02:
I mean, the court rejected that anyway, but go on.

[00:25:31] Speaker 03:
Even the state has acknowledged that this is a type of information to which Zauder has never been applied by this court.

[00:25:37] Speaker 03:
And as far as we know, no court has ever applied Zauder to something other than the intrinsic qualities of the thing being offered for sale.

[00:25:45] Speaker 03:
You know what the pill consists of.

[00:25:47] Speaker 03:
You know the adverse event reports.

[00:25:49] Speaker 03:
You know whether it's contraindicated for certain things.

[00:25:51] Speaker 03:
You even know the price that you're being asked to pay for it.

[00:25:54] Speaker 03:
That is very different than asking a manufacturer to tell you about its internal decision-making

[00:25:59] Speaker 03:
for why it decided to charge one price versus another price.

[00:26:03] Speaker 03:
And once you untether the Zauder doctrine from its underlying rationale of fully informing consumers about what they're being offered, there's essentially no stopping point.

[00:26:12] Speaker 03:
States could want all sorts of information on the theory that consumers would be interested in finding that information.

[00:26:19] Speaker 02:
I mean, I have a hard time because there's nothing about requiring a landlord to provide legal information that is inherently about

[00:26:29] Speaker 02:
the apartment that they're trying to rent out.

[00:26:33] Speaker 03:
So that's another classic zatterer situation.

[00:26:35] Speaker 03:
If you're going to rent the apartment, you have to know, is there asbestos in the walls?

[00:26:39] Speaker 03:
But that's very different from asking the landlord to say, well, how did you decide to rent the property for X price rather than some other price?

[00:26:47] Speaker 03:
What were the factors that went into that?

[00:26:49] Speaker 03:
You don't require homeowners, for instance, to list, you know, you say, are there

[00:26:53] Speaker 03:
lead pipes in the building, that's something you have to disclose.

[00:26:56] Speaker 03:
But you don't have to disclose how it is that you came to choose to market the product at this price at this particular time versus something else.

[00:27:04] Speaker 03:
That's a type of information to which the Zadar doctrine has never previously been applied.

[00:27:10] Speaker 02:
But I understand, going back to your argument of saying this, I think what you were trying to argue earlier and in your brief, you were trying to say because the state is compelling

[00:27:21] Speaker 02:
the disclosure of information to the state instead of in the context of an advertisement, which is direct communication from your clients to their potential customers, that that was a First Amendment problem that made it actually took it outside of Zotter.

[00:27:37] Speaker 02:
But I don't know how you square that argument with Riley's.

[00:27:42] Speaker 03:
I think the point is, it doesn't matter that the disclosure is immediately alongside what you're being offered, so long as it relates directly to the nature of the thing that you are being offered.

[00:27:55] Speaker 02:
So then that comes back down to really the threshold question of whether this is compelling commercial speech.

[00:28:00] Speaker 02:
That's right.

[00:28:00] Speaker 02:
So the context is irrelevant.

[00:28:03] Speaker 03:
So I think it's both whether it is in fact commercial speech, whether it's describing the terms of an actual or potential transaction, that's the way that XCORP described it, and it also matters whether it's something about the product being offered, which this indisputably is not.

[00:28:23] Speaker 01:
Let me ask a couple of questions.

[00:28:26] Speaker 01:
I mean, I disagree with some of the things you said.

[00:28:28] Speaker 01:
I don't want to waste time on that, because I see time is limited.

[00:28:31] Speaker 01:
But I would disagree with your statements that no one has done this per Zauderer.

[00:28:36] Speaker 01:
I would, you know, full value advisors versus SEC, pharmaceutical care management versus Roe found that Zauderer was satisfied.

[00:28:44] Speaker 01:
And we can go through the specifics of that.

[00:28:47] Speaker 01:
But I would like to focus on two questions, because there's limited time.

[00:28:52] Speaker 01:
So on the central Hudson analysis, the district court said, I do think there's substantial state interest here, but there wasn't any empirical evidence provided.

[00:29:01] Speaker 01:
And so I don't think it's narrowly tailored.

[00:29:04] Speaker 01:
And they did say that under inclusive, because you're not making people other than the pharmaceutical manufacturers report.

[00:29:10] Speaker 01:
I guess two questions.

[00:29:11] Speaker 01:
It does appear in the state's amicus brief and the Oregon

[00:29:15] Speaker 01:
coalition for affordable prescriptions that they have provided pretty empirical evidence of what happens when their transparency laws enacted, but separate from that, why isn't it common sense that in any negotiation, if you reduce the information asymmetry, there's going to be more leverage and negotiating power that could result in more favorable pricing to consumers?

[00:29:41] Speaker 03:
So even if you thought that the state could satisfy its burden for intermediate scrutiny by relying on amicus briefs at the appellate level, the actual information that they provide is incredibly weak.

[00:29:53] Speaker 03:
It has cherry-picked evidence about certain, though not other, state disclosure laws.

[00:29:59] Speaker 03:
And about the sort of general timeframe under which disclosures are made and the prices not even taking into account certain things like in 2020 the main year that they rely we had a pandemic which obviously had a huge effect on drug prices among other prices.

[00:30:13] Speaker 02:
I'm not even sure why the state needs to prove that it will actually result in drug price decreases when there is also a purely informational interest that the state asserted and

[00:30:28] Speaker 02:
that the Supreme Court approved of in Riley's.

[00:30:31] Speaker 03:
So a purely informational interest makes a lot of sense if it's a question of what am I getting for my money?

[00:30:39] Speaker 03:
And that would make sense, for instance, in the Riley situation where you're giving money to a charity and you want to know is the charity going to spend the money doing good things or it's going to spend the money on itself.

[00:30:47] Speaker 03:
That is totally different in the situation where we're just curious to know whether it is that...

[00:30:53] Speaker 03:
better informed as a major purchaser of pharmaceuticals if that were pardon me if if just being better informed were a sufficient rationale then these tests would essentially be meaningless because let's look at Souter itself there wasn't any requirement that there be specific

[00:31:09] Speaker 01:
Means, ends, fit, evidence.

[00:31:12] Speaker 01:
The court just relied on self-evident possibility of deception.

[00:31:15] Speaker 01:
Let's look at Bolger v. Young.

[00:31:17] Speaker 01:
There wasn't any requirement that specific empirical evidence be required.

[00:31:21] Speaker 01:
I mean, this is not a requirement.

[00:31:24] Speaker 01:
Look at ExCorp v. Bonta.

[00:31:25] Speaker 01:
No specific evidence was cited to say the means and the ends fit.

[00:31:31] Speaker 01:
I mean, I could just keep going.

[00:31:32] Speaker 01:
CTIA versus Berkeley.

[00:31:34] Speaker 01:
There wasn't any specific evidence of empirical connection.

[00:31:38] Speaker 03:
Full advisors versus SEC there wasn't so that requirement Doesn't seem to be present in other cases So a couple of things full-value advisors the disclosure was just made to the SEC It was not public is just a misreading of the case to suggest that there was a public disclosure at issue there They just haven't been done yet, so they put off

[00:32:00] Speaker 03:
So there were two requirements.

[00:32:04] Speaker 03:
One was under subsection F1, there was a disclosure about the securities that were under management.

[00:32:09] Speaker 03:
That could go to the public.

[00:32:11] Speaker 03:
Then under F2 or 3, there was an exemption process, and you had to justify why you qualified for the exemption process.

[00:32:18] Speaker 03:
That was the thing that they said was satisfied, but that information just went to the SEC.

[00:32:22] Speaker 03:
It was not made public.

[00:32:23] Speaker 03:
They did not opine on the F1 disclosure that was made public.

[00:32:27] Speaker 01:
If I could briefly turn... Let me ask you one other question.

[00:32:30] Speaker 01:
If we conclude that the state didn't waive its severability argument, why aren't any unconstitutional provisions severable?

[00:32:39] Speaker 03:
So we think that all of the provisions would still be non-commercial speech, and therefore, under XCORP, have to go through strict scrutiny.

[00:32:48] Speaker 03:
And we think even under intermediate scrutiny, the state has produced nothing, not even anecdotes.

[00:32:54] Speaker 02:
But if we disagree, assume from the moment that we disagree, we filed some to be unconstitutional and some to be why wouldn't we sever.

[00:33:02] Speaker 03:
So in that case, we would agree that it could be severed.

[00:33:05] Speaker 01:
Okay.

[00:33:05] Speaker 01:
Let me ask.

[00:33:06] Speaker 01:
I just want to confirm.

[00:33:07] Speaker 01:
You never challenge C6, correct?

[00:33:10] Speaker 01:
Those are the provisions regarding a manufacturer introducing a new prescription drug.

[00:33:16] Speaker 00:
That's correct.

[00:33:16] Speaker 00:
That's correct.

[00:33:17] Speaker 00:
All right.

[00:33:17] Speaker 01:
So we don't even have to touch 6.

[00:33:20] Speaker 01:
All right.

[00:33:21] Speaker 01:
Thank you.

[00:33:21] Speaker 00:
Do you challenge the substitution requirement?

[00:33:24] Speaker 03:
Pardon?

[00:33:25] Speaker 00:
Do you challenge the substitution requirement?

[00:33:27] Speaker 03:
So we haven't challenged anything specifically about the new reporting requirements.

[00:33:33] Speaker 03:
Okay.

[00:33:35] Speaker 03:
I see that I'm over time.

[00:33:36] Speaker 03:
If the court has questions about the takings analysis, I would love to get a chance to respond to some of the court's questions, but I understand that my time has expired.

[00:33:46] Speaker 01:
I don't have any more questions, but let me if my colleagues.

[00:33:50] Speaker 01:
Okay, take a minute.

[00:33:53] Speaker 01:
You're already two minutes over your time, but take a minute, please.

[00:33:56] Speaker 03:
Sure.

[00:33:56] Speaker 03:
I appreciate that, your honor.

[00:33:58] Speaker 03:
So first, we just had the concession from the state, which they had to make that this all of the information that is designated as a taking

[00:34:05] Speaker 03:
as subject to the public interest exception, is in fact property under Oregon law.

[00:34:10] Speaker 03:
It's also property under the laws of all 50 states.

[00:34:14] Speaker 03:
Every instance in which the public interest exception is invoked, you know two things are true.

[00:34:20] Speaker 03:
One, the information qualifies as a trade secret and is therefore property under the laws of Oregon in all 50 states.

[00:34:26] Speaker 03:
And two, it will be exposed, and therefore all of the value will be destroyed.

[00:34:30] Speaker 03:
And that makes it appropriate for a facial-taking claim in the same way as the Eighth Circuit case that we cite, and in the same way as in Ruckel's house, it was a pre-enforcement challenge.

[00:34:40] Speaker 03:
None of the information had been destroyed.

[00:34:42] Speaker 02:
Well, there'd also have to be, I mean, under the Penn Central test, weighing various factors, there'd have to be a determination of whether there was effort to, you know, whether reasonable efforts were made to keep it secret, whether there was reasonably backed, investment-backed expectations of confidentiality, which even if I put aside the state's argument that those were destroyed by complying with this law to do business in Oregon in the first place, there could be other

[00:35:10] Speaker 02:
Other things that show that there was not a reasonable investment back consideration.

[00:35:15] Speaker 02:
There is a question of value and how is this I mean on top of the fact that

[00:35:23] Speaker 02:
We don't even know if this exception is ever going to.

[00:35:25] Speaker 02:
I understand there's a question, but we don't know whether it's ever going to be invoked.

[00:35:31] Speaker 02:
And then on top of that, we have the problem where the court has said there shouldn't be equitable relief in the takings context.

[00:35:39] Speaker 02:
So we don't even know if a facial claim is actually cognizable here.

[00:35:42] Speaker 03:
Yeah, so a few things.

[00:35:44] Speaker 03:
Taking your last question first.

[00:35:46] Speaker 03:
In NIC, the court said you cannot get an injunction to stop a taking.

[00:35:50] Speaker 03:
That's not appropriate because takings, the government can take your property.

[00:35:53] Speaker 03:
They just have to pay compensation.

[00:35:55] Speaker 03:
What you can get and what the plaintiffs got in NIC is what we're asking for here, which is a declaration that if you take the property, you have to pay compensation at the time of the taking.

[00:36:05] Speaker 02:
If I remember correctly, though, Nick didn't involve regulatory takings.

[00:36:09] Speaker 03:
It wasn't a regulatory taking, but once there is a taking, just compensation is due at that time.

[00:36:14] Speaker 03:
That was the square holding in Nick.

[00:36:16] Speaker 03:
The second, you had a question about all the preliminary determinations.

[00:36:19] Speaker 01:
But if Nick is the right framework, why isn't there an adequate provision for getting just compensation?

[00:36:24] Speaker 03:
Well, that was exactly what Nick rejected, is the idea that since you can get just compensation after the fact, there is no problem until you've been denied just compensation.

[00:36:33] Speaker 03:
Nick said no.

[00:36:34] Speaker 03:
The violation occurs at the time of taking if it is uncompensated.

[00:36:38] Speaker 03:
And that's why a declaration that uncompensated... But there's been no taking here yet.

[00:36:41] Speaker 03:
So there hasn't been.

[00:36:42] Speaker 03:
What we need for a facial challenge is a credible threat that this provision will be enforced.

[00:36:47] Speaker 02:
How do you square that with the case law that says that the compensation can follow the taking?

[00:36:51] Speaker 03:
Pardon?

[00:36:52] Speaker 02:
There is a case law that says the compensation can follow.

[00:36:57] Speaker 03:
So Nick squarely overruled the Supreme Court's prior doctrine that said you can wait until the taking has occurred and then force someone to go to get compensation.

[00:37:06] Speaker 02:
The facts of Nick were very unusual.

[00:37:09] Speaker 03:
So, respectfully, the court reaffirmed that in the Packdale case, among others, Centerpoint nursery versus Hasid, all of those involved declaratory judgments that at the time of the violation there has to be compensation.

[00:37:21] Speaker 01:
Wait, do you agree that there's an adequate provision for obtaining just compensation?

[00:37:25] Speaker 03:
We don't.

[00:37:26] Speaker 03:
The state has never identified it, and certainly there's no provision to provide compensation at the time of disclosure, which is what

[00:37:32] Speaker 03:
the Supreme Court would require under Nick.

[00:37:34] Speaker 03:
You asked a number of preliminary questions about how do we even know that there will be trade secrets?

[00:37:39] Speaker 03:
Maybe you haven't protected the information, maybe it's not valuable.

[00:37:42] Speaker 03:
Those are all ancillary to the question whether there is a trade secret in the first place.

[00:37:47] Speaker 03:
If there's no trade secret, the public interest exception doesn't even come into play.

[00:37:51] Speaker 03:
It's only after you know that there's a trade secret.

[00:37:54] Speaker 02:
I mean, there's a reason why we're only supposed to decide actual cases and controversies with a significant amount of factual development.

[00:38:01] Speaker 03:
So you know, just as a matter of law, that if it doesn't meet all of the definitions of a trade circuit, including that it derives information, that the information derives value from being held secret, then the public interest exception, as a matter of law, just doesn't apply to it.

[00:38:17] Speaker 03:
It only applies if it is a trade secret and destruction of all of that value occurs as a matter of law under the Ruckelshaus reasoning once that information is made public.

[00:38:29] Speaker 03:
There is no instance in which the value of the information is retained after publication.

[00:38:34] Speaker 02:
The analysis under Penn Central would still require, I think even after that happens, a trade secret

[00:38:42] Speaker 02:
Let's assume an actual trade secret that would qualify as a trade secret under Oregon law, then creates a property right, and then there is a finding of a public interest exception and a disclosure.

[00:38:53] Speaker 02:
There would still be a multi-factor, fact-specific test that has to be applied to determine whether it is a taking.

[00:39:01] Speaker 03:
That's correct.

[00:39:01] Speaker 03:
But Ruckelshaus tells us exactly how to do that.

[00:39:04] Speaker 03:
And it says, in the case of a trade secret, the first factor, investment-backed expectations, is so overwhelming as to render.

[00:39:11] Speaker 02:
In that case.

[00:39:11] Speaker 02:
They didn't say in every case.

[00:39:13] Speaker 03:
So I think Judge Torreya's opinion in Riley goes through this and explains, there is no instance in which a trade secret can be exposed, and it doesn't destroy 100% of the value of the secret.

[00:39:26] Speaker 03:
There is simply no leftover information.

[00:39:28] Speaker 02:
So then the application of the factors determine whether it's a taking.

[00:39:32] Speaker 03:
So that was exactly the argument that Judge Lopez made in dissent in that case.

[00:39:36] Speaker 03:
Respectfully, we think the majority in that case had the better argument.

[00:39:38] Speaker 01:
That's not binding enough.

[00:39:41] Speaker 03:
Understood.

[00:39:42] Speaker 01:
All right, you're almost eight minutes over your time.

[00:39:43] Speaker 01:
Thank you.

[00:39:44] Speaker 03:
Thank you.

[00:39:51] Speaker 04:
So I'll try to use my time to address the questions that Judge Koh had.

[00:39:55] Speaker 04:
First, ER 139 paragraph 8 is a declaration saying that one manufacturer submitted lengthy narrative descriptions for its marketing and pricing methodology for a new drug and claimed that the information was trade secrets.

[00:40:06] Speaker 04:
DCBS staff subsequently found all that information on publicly available websites, such as the manufacturer's own website, press releases from the manufacturer, SEC 10K filings, and clinical trial information submitted to the FDA.

[00:40:18] Speaker 04:
So much of this information, as I think Judge Koh suggested, is simply not secret.

[00:40:22] Speaker 04:
As for the narrowness of the challenge, you know, there's three Cs, the statute.

[00:40:29] Speaker 04:
And then there's a rule, because a narrative statement, which is with the focus of the argument at the district court, that narrative statement doesn't appear

[00:40:37] Speaker 04:
in the statute, it appears in the regulation, which is rule 836-200-0530.

[00:40:44] Speaker 04:
And that has a number of other requirements that are not found in the statute that the district court improperly struck, including, for example, the full chemical name and biologic product name of the drug.

[00:40:56] Speaker 04:
There's nothing.

[00:40:57] Speaker 02:
Sorry, if assuming there was a problem with the requirement of a narrative statement, then at most, then that rule would go away, is what you're saying.

[00:41:07] Speaker 04:
that that that would be the appropriate remedy your honor based on on what was litigated below and and then.

[00:41:13] Speaker 01:
If I can address a little bit sorry I may have missed this the declaratory judgment I thought was just on section three but you're saying it was also as to this reg 836 200 dash 36.

[00:41:26] Speaker 04:
I think it was... I'll look it up later.

[00:41:30] Speaker 04:
As for the takings, I think I'll say Mr. Kettum cited a U.S.

[00:41:37] Speaker 04:
Supreme Court case, Packdell.

[00:41:38] Speaker 04:
That case requires an actual injury.

[00:41:41] Speaker 04:
It says that

[00:41:42] Speaker 04:
that you can't have a claim unless the government's actions actually injured somebody, and it prevents prematurely suing over a hypothetical harm.

[00:41:51] Speaker 04:
It says, then I'll quote, the court must first know how far regulation goes before it knows whether it has gone too far.

[00:41:57] Speaker 04:
And it says that until the government makes up its mind, the court will be hard pressed to determine whether the plaintiff has suffered a constitutional violation.

[00:42:02] Speaker 04:
These are all problems in this case.

[00:42:04] Speaker 04:
There's no actual injury.

[00:42:06] Speaker 04:
And as for this question of whether Ruckelshaus says, you can just

[00:42:09] Speaker 04:
make it all a question of reasonable investment-backed expectations?

[00:42:13] Speaker 04:
Well, in Ruckelshaus, the only basis for a reasonable investment-backed expectation was an express promise of confidentiality, which is missing here.

[00:42:22] Speaker 04:
So even if you were to map these claims that plaintiff has here against the claims in Ruckelshaus, most of the claims in Ruckelshaus were rejected because there was no express guarantee of confidentiality.

[00:42:31] Speaker 04:
These claims here look like those.

[00:42:33] Speaker 04:
They do not look like the one narrow set of claims that prevailed in Ruckelshaus because there was an express promise of confidentiality.

[00:42:39] Speaker 04:
which is lacking here.

[00:42:42] Speaker 04:
So that's ignoring the actual injury problem, which we think really prevents the court from even addressing it.

[00:42:47] Speaker 04:
And so unless the court has further questions, we ask the court to reverse on both claims.

[00:42:51] Speaker 01:
I do, and I just want to follow up on Judge Baez's question.

[00:42:54] Speaker 01:
He asked you about 3D.

[00:42:58] Speaker 01:
the name of any generic version of the prescription drug available on the market.

[00:43:01] Speaker 01:
I know we talked about earlier that's generally publicly available information, but that's not information about the manufacturer, the reporting party's product.

[00:43:10] Speaker 01:
So why would that count as the commercial speech of the manufacturer that's reporting?

[00:43:15] Speaker 04:
It's still information related to the market, Your Honor.

[00:43:18] Speaker 04:
And I think information about a market is still commercial, because it still pertains to the act of selling this drug in that market.

[00:43:25] Speaker 00:
Regardless whether it's a transaction or not, just for transparency purposes.

[00:43:29] Speaker 04:
Yes, Your Honor.

[00:43:31] Speaker 00:
That transparency was dealt with in X-Corp, wasn't it?

[00:43:36] Speaker 04:
X-Corp involved expression, Your Honor.

[00:43:38] Speaker 04:
This case does not involve expression.

[00:43:49] Speaker 01:
Do you agree that Nick is the appropriate framework for the declaratory relief analysis?

[00:43:56] Speaker 04:
Yes, Your Honor.

[00:43:57] Speaker 04:
I think the Supreme Court's precedent on this has been a little bit confusing at times.

[00:44:02] Speaker 04:
So I think you might find conflicting statements in other cases, but Nick is binding on this court.

[00:44:09] Speaker 01:
But if it relied on Cedar Point, and Cedar Point didn't address remedies at all, how do we reconcile that?

[00:44:20] Speaker 04:
I think that those cases have more to do with the question of injunctive relief, as I understand them.

[00:44:32] Speaker 04:
Am I mistaken, Your Honor?

[00:44:33] Speaker 04:
You look like you think I'm mistaken.

[00:44:35] Speaker 01:
Well, Cedar Point was a denial of a preliminary injunction.

[00:44:41] Speaker 04:
I'll be candid with you, honor.

[00:44:42] Speaker 04:
I'm not sure I'm prepared to answer that question.

[00:44:44] Speaker 01:
OK, that's fine.

[00:44:44] Speaker 01:
That's fine.

[00:44:45] Speaker 01:
I don't have any more questions.

[00:44:46] Speaker 01:
Let me see if my colleagues do.

[00:44:49] Speaker 01:
OK, all right.

[00:44:51] Speaker 01:
Thank you very much to both counsel for very helpful arguments in this very complicated case.

[00:44:57] Speaker 01:
Thank you very much.

[00:44:58] Speaker 01:
And we are adjourned for the day.

[00:45:00] Speaker 01:
This case is submitted.

[00:45:02] Speaker 01:
Thank you.

[00:45:05] Speaker 01:
All rise.