Legal Case Summary

First case this morning is Stoffer versus Brooks Brothers. Mr. Stoffer? Madam sir, one minute for a bottle. Yes. Thank you. Good morning waters. May the persuade the court on a raised staffer and I am any person which is the only standing requirement that the false marketing statute it poses upon date. Before discussing any injury in fact I would note that on June 10th of this year a panel in this court reached the merits of people on versus solo cup by affirming a summary judgment of no liability for false marketing in favor of solo cup. That decision is significant for the following reasons. The plaintiff, people on was a registered patent attorney and therefore by definition he was not in competition with solo cup. I am also a registered patent attorney. The counsel standing wasn't raised in that case and the issue wasn't decided by the court. But it was raised below in that court and the court could have reached it and every federal court has an obligation to assure itself that it has subject manager or a jurisdiction before it reaches the merits of a failure to the court to reach it necessarily means it wasn't decided. Okay. Well then I also believe that this court's dip did in forest group which was a case between two competitors further supports not competitor standing because in forest group this court noted that the plain language of the statute allows false marketing litigation by plaintiffs who have not suffered any direct harms. Those starry decisives observations notwithstanding, Berksboro is a decade long practice of falsely marking their bow ties and their post complaint decision to continue falsely marking their bow ties has caused numerous direct harms to meet to other members of the public to competitors and to the United States. Mr. Stahl, is this a key time case? Yes it is. But is this standing required for a key time case? I believe it is under the doctrine of assignment in Vermont agency. I believe that I have standing based on assignment of the United States injuries. I also think that I'm also a traditional plaintiff insofar as Judge Stein noted that I had injuries in footnote 7 of the case that would have allowed me to be a traditional plaintiff but not a key time plaintiff. I believe that if I didn't understand the distinction. It isn't your best argument that when you started out with any person? Yes sir, any person. I believe that in people not the district court came with the conclusion that anybody who stepped forward on behalf of the United States government has standing but just in case that bait doesn't catch fish, I want to further argue that this court was coming up. Are you appearing to assist the U.S. government or are you appearing because the statute says you can't do that. Yes sir, yes I can. That's why I'm here. Respectable

. You're helping the U.S. government or not? Yes indeed. This court in Clometac recognized the first of my injuries by noting that Congress intended the public to rely on Marky as a rainy means of discerning the status of intellectual property embodied in an article of manufacture or design. By further noting that the public is clearly injured or full-smarting because the active full-smarting must be to the public to believe that a patentee controls the order of the question as well as life particles. As filed in the complaint shows one that I saw the patent marking was on the court as both ties to the right of treating patents from the U.S. PDO website. Three, that I researched the prevailing patent act to determine the applicable limitation of patent term. Council, as I understand you're opposing council, they argue that Vermont agency stands for the proposition that sovereign injury alone would be insufficient basis to bring suit. I understand you to be arguing you have proprietary injuries on your own. Suppose that we instead are focusing on your standing in the shoes of the government in this quittam action. What are the proprietary harms that the government has suffered in this case? Well, the proprietary harms are that Brooks Brothers in addition to violating Section 292, we didn't as much think put what I believe is a counterfeit, excuse me, a counterfeit trademark on the product as well. Well, constitutes a violation of the Federal Anti-Train Mark County Fidding Act. And they are everywhere all of the bow ties that I'm born for Brooks Brothers is subject to potential repossession by the federal government because they are subject to compensation by the federal government. The violation of the trademark act seems like yet another sovereign injury to the government, but I'm having difficulty understanding the quenery. Well, the quenery is that this might be the property of the United States government, but I paid for it. So that's the injury where there's a potential dispute over the ownership of the products that I told you. Because of their violation of the Federal Anti-Train County Fidding Trave Mark Act, the government could repossess or compensate all of the forcing more products under that statute alone. So because of that violation of the statute, the property ownership is in dispute. Somehow falsely marking a patent number after expiration is a violation of a trademark act? No, no, but the ribbon that is placed along the ribbon that is placed along the 25 piece, full of five trademark numbers. And it refers to the original adjustment of last time to break. But we are deciding today whether you have standing to bring a key-tam suit under 292, not whether you have standing to bring a suit under a trademark counter-agricent statute. And Lucia and I think stated that it doesn't matter from whence the injury derives from standing purposes. Well, you may have fallen down on the courthouse steps and been injured and haven't yet another suit against somebody for that, but that's not what we're here to decide. We're here to decide standing for 292, an unrelated, which this is injury, seems to me awfully difficult to raise standing for something that is completely unrelated to. Well, this is so unpolished. The fact that one of these huge statutes, the Federal Anti-Train Fidding Trave Mark Act says they are home in just a large trademark, is a violation of the situation. Is that the basis for your suit? Are you suing under a violation of the trademark statute? No, I'm suing on the basis of 292, but again, it doesn't matter where the injury comes from

. And if we're looking for a proprietary injury, that counterfeit statute says that any counterfeitly marked products are subject to confiscation by the government. So every vote time that I vote, that contains a just a locks trademark counterfeit mark is subject under that statute, and therefore we don't know who the property right is. It could be... I am really finding the argument difficult to understand and appreciate. So perhaps you could go back under one case fall as it says, a completely unrelated injury that has nothing to do with the statute and issue or the injury from violation of the statute and issue could not be. But nonetheless, give standing to someone to bring suit under that statute. I believe in the new year and versus defenders of wildlife. Justice Scalia said that it makes no difference from where the basis of the injury comes from to support the government. But that's not a 292 suit. It's not, but the fact that they're kind of known together because of the commonality that's in the label, both the false patent markings and the counterfeit trademark. I feel the one to stay while you're using these shut down arguments all over the place. All I mean is because proprietary is going to stop someone to 92. You're right out here today under 292. That's a statute I'm appearing under. But in so far as the defendants wanted to make a debate out of sovereign and proprietary without winning to any case that has held that that's the distinction in the 292 case, I did a little bit more research and I found out that if you put a counterfeit trademark on a product that it opens it up to the public. I'm not saying that my government therefore has government property potentially and there's the proprietary danger. But there has to be traceability that you cannot trace to 292. Well, I asked to be traced to the statute upon which you're relying for standing. You can't trace that to 292. With what do you expect? I think the rhetoric and lusian. You're in the rebuttal time. Would you like to keep it? Oh, yes, I'd like to keep it. Thank you. Mr. Letter. May I please the court? I'm Douglas Letter from the United States Department of Justice. With me today is John Fargo from the Civil Division of Justice Department

. I think it's well known to you. I do want to reserve two minutes of time. If I could go straight to the more's question. The key really is here, the argument that the United States Congress under the Constitution may only assign proprietary rather than sovereign injury. Otherwise, this case is clearly governed by the Vermont Supreme Court opinion. Note that there is no arguing in favor of your right to intervene or Mr. Stoffer's claim. You are, I was going to argue entirely, Mr. Stoffer's claim. If the court wants to hear the intervention right, I will argue that this court has granted our motion to intervene in Mr. Stoffer's appeal. So I thought that was done. Wait a minute. Don't you want to, to Zolaurea, it's a good point because don't you want to intervene below as well? I understood there to be an appeal from the failure of the lower court to reach your motion to intervene below. So when, and if this were to go back, when the government want to be a part of it? You are actually the court denied our motion to intervene. That's what you're appealing from, really, isn't it? No, no, no, we are appealing from both. We thought you noticed that the appeal were appealing from the denial of intervention and the dismissal of the key tam complaint. But they made an allegation of unconstitutionality of the statute. You've got the right to intervene as a matter of right. Yes. We make that clear if we were to send this back. Absolutely. We have been denied that right thus far despite the clear constitutional challenge of the Second Amendment. Absolutely. You're our end. You know, my friend Mr. Baker will argue, well, the district work didn't reach the constitutional issue. I see that that's absolutely wrong. We were to remand, they certainly were

. That is true. I know it's serving a public interest injury as well as a sovereign interest injury. What is your basis? I view those as together here. I don't view those as separate. The United States has a sovereign interest to prevent the fall. The investing problem, of course, the sovereign interest injury is based on the violation of a statute. Correct, Your Honor. And then we'd have to look at whether there was any intent to violate in this case to see if there's a violation. And you have an awful lot of trouble getting up by Peckon, wouldn't you? We'd have had far more compelling facts than the ones that you're arguing for. The United States is not taking any position on the underlying merits. But see, the sovereign interest injury relies on a violation of the statute. Right. If there's no intent, there's no violation of the statute and you don't have a sovereign interest. That is absolutely correct, Your Honor. And so how do you get around Peckon? Because Mr. Stofer alleges in his complaint. And remember, we are just here on standing. That's all exactly. How do you assert a sovereign interest injury in light of Peckon, which requires you to show that there's an intent requirement and your facts are worse than the Peckon. Mr. Stofer alleges in his complaint, I think it's paragraph 124, is that the alleges that Brooks Brothers knew that they were putting an expired patent. On their product, as this court has said, that raises a presumption that there is an intent to deceive Brooks Brothers can at the merits of the case can attempt to defeat that. But that's clearly not a standing inquiry. In Peckon, they knew the patents that expired. Here we have evidence that there was no idea the patents were expired. And in fact, the markings were supplied by someone else, not even the plaintiff. Not even the defendant. You are those are merits issues. What you have to show intent to have a violation of the statute and that's required for a sovereign interest injury

. But again, you are not at the standing stage. The complaint alleges that they had knowledge. They can stand is not just based on allegations. Of course, Your Honor. Now, Mr. So you have to get by at least the minor hurdle of showing some intent. And Peckon all really shoots a hole in your intent. So how do you get sovereign interest standing? You are. I'll try to back up. This court has held that when there is knowledge, there is presumed to be an intent. That is a rebuttable presumption. And at trial, as in Peckon, I'll remember Peckon was a trial. At trial, Mr. Baker and his client can prove that actually Mr. Stafford's allegation is wrong and they had no intent. But that's for trial. And you can't be relying on the clienteck. And I believe this court said it also in BonTool and in Peckon. There is a presumption, a rebuttable one, but it clearly can't be rebutted in a standing court. But even action for presumption is the government's position as I'm understanding it, that for purposes of standing, we assume everything in the complaint to be true, including the presence of intent. Exactly, Your Honor. We have to accept that no matter how wrong it may seem to us that we have to assume it is true and then just decide if true is their standard. That's exactly right. The district court made a very serious constitutional error at the standing stage. Again, it may be that Peckon will mean that Mr. Stafford will lose at the summary judgment stage or a trial, but he can't lose at the standing stage. That is clearly wrong. Why can you intervene when the judge didn't decide a constitutional issue? Well, did we or didn't, I'm sorry. We attempted a trial here entitled to several reasons, Your Honor

. First, the judge... And I guess the question is here, isn't it? Yes, although it's the same. Which you've already decided, we've decided. Yes, you've granted intervention already, but again... Yes, yes. ...to answer your question, we can intervene for two reasons. One, the judge did rule on constitutional grounds. He held that under Article 3 of the Constitution, Congress cannot us make this kind of assignment. That's a clear constitutional ruling, despite the wording of the statute. Second, even if he did not do that, as we pointed out, we haven't been in the United States. It has a strong interest in this case. We have a monetary interest. You have to be on the rule 24A2. We're under 24A and B. It's permissive intervention, and we were entitled to intervene. Why is that the bounty awarded by the statute just like a wager on the outcome? You're under that. That's the argument that was made. And I actually was the government's attorney in the Vermont case. The same argument was made, the Supreme Court rejected it. The Supreme Court said we have several hundred years of history, of key damn stands. And Lohan also said that standing is not a mere pleading requirement. You have to support it as you would support every element on which you have the burden of proof

. It's not based on pleadings. We don't assume anything, do we? You have to meet a minimum standard to assert your sovereign interest. Does Lohan say that? No, it does not. It doesn't say there's not a mere pleading requirement. Specifically says that it's not talking about the special category of cases where Congress has created a bounty in a relator. It specifically says that's different. And the state of Vermont, the Vermont case, make quite clear that there is article three standing. Now, the Mr. Maker says, ah, but there isn't because in the False Claims Act, the United States has an injury, damages. That's not correct. We pointed out in my brief, any number of circuits have held. There is a False Claims Act violation, even if the United States suffers no damage. This doesn't an FCA case. Right, but Vermont and the United States should face this case as Lohan was. Right, two cases. No, but the reason the False Claims Act is key here is because the Supreme Court said that there is article three standing in key tam cases. And what I'm trying to point out, this is like a False Claims Act case because a key tam relator under the False Claims Act has article three standing, even if there is no monetary damage to the United States. And Judge Raider, you want to check your time there? You're about a minute and a half over. What I would most like to do is answer your questions. So if you have further questions, I'd like to answer them because I think it's essential that I address wherever questions you have. Thank you. Thank you, you are. Mr. Baker? I'm morning. My colleague, Mr. McGonigal, is admitted to this court and he gets itchy when I start to talk. And he may want to pass me a note. I hope that doesn't offend the court at all. It depends on what the note says

. If he asked me not to lunch, I'm not going to. What it sounds me is that, Judge, that's terrible. The Judge made a decision here and he made a back to a decision. He said, Brooks Brothers, it's not the marker. Now, if Brooks Brothers is not the marker, then there is no damage or injury. If that's merits, isn't it? No, it's under 12B1. Under 12B1, the court can look at the complaint and doesn't have to take everything is true. And if you look at Appidates, it was submitted. Appidates submitted by Mr. Dixon and Mr. Green. That demonstrated that. Number one, Brooks Brothers was not the marker. Let's get to base the basic standard. 292 says any person may sue. Doesn't that, to the extent that there's a standard requirement, imply standing? I don't think you can imply standing. Standing needs to be stated. And the problem here is you have a 40-page complaint that if you read the complaint and then line it up with the statute, and as DOJ says, it's not your job to go hunting for troubles in that complaint. A complaint should be short, it can speak concise, it should be factual. And when a complaint is of the nature that was submitted in this case, it is exceedingly difficult for the district court to deal with. It is 40 pages of truth. But didn't he claim missmarking? And isn't he any person? Look, that's like saying, on a person, this is missmark, there's liability. That is not the way you plead. No, it's not the question. This is missmarked. Oh, this is missmarked. This is missmarked by the marker, by the defendant, who had knowledge, who did it with the intended deceit, is how you would plead this case. That's merits. Excuse me? That's merits

. You can do it. The case, you have standards of pleading. You have rule A, you have rule not. Rule not is a heightened standard of pleading when you get into fraud. The lower court didn't kick this case for a failure to properly plead. He kicked it for a lack of standing. He kicked it because standing was not planned. It did not say that there is no standing over 92 for anybody who brings this case. So would you then be satisfied with us? They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not

. They are not. You are not. You are not. What do you do with any sort of evidence? 40 years ago I learned the law of the case is not necessarily law, but it is the law of the case. We have a client in the court that the court did not mark. Somebody else did. JMC Bank. We also have a client in the court that the competition was not well because we have I mean number of times. But it's the same. But Brooks Brothers didn't mark. It doesn't lead to a dismissal for lack of standing. Brooks Brothers didn't mark, may result in a 12-B6 or something else. But that's not a dismissal for a standing. It's a 12-B1. When a 12-B1, the court can look outside the pleading. It was looking at today. It is determined whether or not there is standing. Because we've raised a factual attack. You have to defend. You have to look at what a 12-B1 is. You can look at a complaint and attack a patient. Facial attack is essentially what happened in this case cited by the government that showed standing in a Queentown. That was the secondary health care case where somebody came and said, on my Queentown, I have a right to sue. He was dismissed for standing. This appellate court looked at that denoubled. And they said, you know, you're right. We can look at this to know what this is. The question of law, you don't have standing because there's no provision in the app. This is not a judicial attack on this action. Artists was a factual attack on the complaint and the merits. And that can be decided under 12-B1. And under 12-B1, you can put in appidavits. And if the court did not look at our appidavits and consider them, that would be error. So the court looked at those appidavits. They looked at the complaint. They looked at the statute. And they said, Brooks Brothers is not the mark. And although Mr. Stauper says competition was well, competition was not well because when we did else does the same thing. Sacks goes the same. And then it's always learning to care. And as Judge Moore says, though, you're off the track. Maybe this case has the wrong defendant. Maybe with one defendant or another, I'll defend him in some of the merits. But we get back to the question of the plaintiff, standing, the statute. Standing, bars, injury, and there could be no injury. Where does it say injury in the statute? I, the third amendment, the United States, Court of Appeals, I'm not sorry. The Constitution requires, no. The Constitution requires that you have standing, and that you have an injury. You can't have just advisory. Are you challenging the constitutionality? No, not for an injury. By not requiring injury? I know very few statutes that require an injury. The statute will say, if you do, if you mean, look at 1125 A for the statute. It was brought up in Mr. Stafford's speech. No matter in that statute doesn't say injury. Stafford, the statute say, if you do this, you violate that there may be a remedy. And if there's a remedy, then we're going to go to court

. Artists was a factual attack on the complaint and the merits. And that can be decided under 12-B1. And under 12-B1, you can put in appidavits. And if the court did not look at our appidavits and consider them, that would be error. So the court looked at those appidavits. They looked at the complaint. They looked at the statute. And they said, Brooks Brothers is not the mark. And although Mr. Stauper says competition was well, competition was not well because when we did else does the same thing. Sacks goes the same. And then it's always learning to care. And as Judge Moore says, though, you're off the track. Maybe this case has the wrong defendant. Maybe with one defendant or another, I'll defend him in some of the merits. But we get back to the question of the plaintiff, standing, the statute. Standing, bars, injury, and there could be no injury. Where does it say injury in the statute? I, the third amendment, the United States, Court of Appeals, I'm not sorry. The Constitution requires, no. The Constitution requires that you have standing, and that you have an injury. You can't have just advisory. Are you challenging the constitutionality? No, not for an injury. By not requiring injury? I know very few statutes that require an injury. The statute will say, if you do, if you mean, look at 1125 A for the statute. It was brought up in Mr. Stafford's speech. No matter in that statute doesn't say injury. Stafford, the statute say, if you do this, you violate that there may be a remedy. And if there's a remedy, then we're going to go to court. But there's no remedy here because there is a factual find. You cannot. You cannot reverse judge on his factual finding that Brooks Brothers is not the marker. Clontax says that there's an injury every time the public sees a mismarking. How do you get around that? They see a mismarking, I struggle with contact. But they see a mismarking is by somebody who applied the mismarking. Maybe it's an injury, maybe it's not an injury. You have contact, however it was fact specific. And this is fact specific. In this particular case, you have serogenous facts that the district court found that it was right to do, and which cannot be reversed unless you find those findings are error, just because you disagreed with whether or not Brooks Brothers is a marker. It doesn't mean you can reverse it. Well, there isn't a finding. I've sat here while you're talking. The closest I can find is on page 10, where it says that Brooks Brothers presented evidence to that. But there's no finding that I can find this lower court decided that Brooks Brothers is not marking, and that's the reason for its holdings. I can't find that. Where ever it is. Show me where. Show me where since you spent so much of your time telling us this. Man, just hand this up and see. Now just tell me what page it's on. It says on, this is page five, Lexus. It's an A180 of the hand itself. A10, about A10 of the hand itself. And on page 810, where exactly? What's that? It's one of you. It's supposed to be more of the hand. Hold on, the opinion's only nine pages long. Just give me a second. I'll wear A10 like two

. But there's no remedy here because there is a factual find. You cannot. You cannot reverse judge on his factual finding that Brooks Brothers is not the marker. Clontax says that there's an injury every time the public sees a mismarking. How do you get around that? They see a mismarking, I struggle with contact. But they see a mismarking is by somebody who applied the mismarking. Maybe it's an injury, maybe it's not an injury. You have contact, however it was fact specific. And this is fact specific. In this particular case, you have serogenous facts that the district court found that it was right to do, and which cannot be reversed unless you find those findings are error, just because you disagreed with whether or not Brooks Brothers is a marker. It doesn't mean you can reverse it. Well, there isn't a finding. I've sat here while you're talking. The closest I can find is on page 10, where it says that Brooks Brothers presented evidence to that. But there's no finding that I can find this lower court decided that Brooks Brothers is not marking, and that's the reason for its holdings. I can't find that. Where ever it is. Show me where. Show me where since you spent so much of your time telling us this. Man, just hand this up and see. Now just tell me what page it's on. It says on, this is page five, Lexus. It's an A180 of the hand itself. A10, about A10 of the hand itself. And on page 810, where exactly? What's that? It's one of you. It's supposed to be more of the hand. Hold on, the opinion's only nine pages long. Just give me a second. I'll wear A10 like two. Okay, there we go. They A10. Got it. All right, so where is it? Start with more over, and it's, goes down, it says, and probably, the defendant submitted declarations and exhibits them by the defendant, and probably considered on which, they were probably considered. That's for the court's end. It's probably considered, which showed that the adjustable occupant mechanism with the mark in the question is a fix to it, is not made by the defendant's, but is instead provided to the defendant's and to many of them, the court's brothers and predators are getting dry. As shown in the ethics and declaration. So if you book a district out of the... You should have held this guy. This is a picture of the pardoned pie. This is what the pie looks like. These photographs are in the evidence. This is the component that is bought by Brooks Brothers. It's about 15, 20% of the time. It is sewn on to this tie by Brooks Brothers on which appears in Brooks Brothers later. Brooks Brothers did not mark this component. The component was marked by J.M.C. Bo. The J.M.C. Bo is the marker, and that's what Judge Vanley, the J.Better was not marked by Brooks Brothers. And that cannot be touched on a piece. That's a factual finding, Quich

. Okay, there we go. They A10. Got it. All right, so where is it? Start with more over, and it's, goes down, it says, and probably, the defendant submitted declarations and exhibits them by the defendant, and probably considered on which, they were probably considered. That's for the court's end. It's probably considered, which showed that the adjustable occupant mechanism with the mark in the question is a fix to it, is not made by the defendant's, but is instead provided to the defendant's and to many of them, the court's brothers and predators are getting dry. As shown in the ethics and declaration. So if you book a district out of the... You should have held this guy. This is a picture of the pardoned pie. This is what the pie looks like. These photographs are in the evidence. This is the component that is bought by Brooks Brothers. It's about 15, 20% of the time. It is sewn on to this tie by Brooks Brothers on which appears in Brooks Brothers later. Brooks Brothers did not mark this component. The component was marked by J.M.C. Bo. The J.M.C. Bo is the marker, and that's what Judge Vanley, the J.Better was not marked by Brooks Brothers. And that cannot be touched on a piece. That's a factual finding, Quich. The Biscuit and the Second Court of Appeals requires that you give deference to the court's by combined acting ability. What it's up to us to decide what it means to mark, right? That's a question of statutory interpretation, which is a question of law. All this court says is that as a factual matter, it appears from the pleadings and declarations submitted by you all that the label is provided by J.M.C. Bo time company. It's up to us to decide what the statute means when it says whoever marks. So if I were to conclude that by placing that label on the good and putting the good in commerce, you are, in fact, the marker, and that's a matter of statutory interpretation. It's not really a sign that they do as a matter of law. They did not buy it, they bought the entire component, pretty much. But then you fixed it to the bow tie, they didn't provide everything, right? It was a fixing bow tie. So you have fixed a label, happens to be a large label, to a bow tie, and put it in the stream of commerce. So you're suggesting, I should conclude as a matter of law that constitutes marking under the step. You're suggesting that every manufacturing from buys a component has something manufactured to a more components, as you look at every nut, every screw, every bolt, as to look at the bag, look at the tie, see if there is more. Because if there is more, you can't put them on your car. Certainly, at a minimum, it seems that standing, there might be standing for the allegation of the fact that you marked, it seems at a minimum, that that would be something that maybe should go forward to America. And then what do you do with people now, when you have to have intent, and you bought it from a third party, and you put it on you? Now we have a conspiracy with J.M.C. Bowen, and Brooks Brothers saying, oh, we're gonna put this together in 12th-October. She's a question to you, raising our excellent ones that go to America. The question is, what should we do with standing, is he any person who has a right under the statute to bring suit for the penalty that has been decided by Congress? You could decide, without saying this case back, that you need not a way, taking more than a selection, but you do have a problem with sending it back and having a recreating that is futile, because it's not gonna get passed Joe Stein. It's simply just not. The law of the case is Brooks Brothers was there. That's the law of the case. And if, that's the thing that's not. Excuse me. Excuse me. Does that remind me now? And you don't get passed Blue Money? Blue Money says, number one, you have to have to take the rise injury that's not happening at all

. The Biscuit and the Second Court of Appeals requires that you give deference to the court's by combined acting ability. What it's up to us to decide what it means to mark, right? That's a question of statutory interpretation, which is a question of law. All this court says is that as a factual matter, it appears from the pleadings and declarations submitted by you all that the label is provided by J.M.C. Bo time company. It's up to us to decide what the statute means when it says whoever marks. So if I were to conclude that by placing that label on the good and putting the good in commerce, you are, in fact, the marker, and that's a matter of statutory interpretation. It's not really a sign that they do as a matter of law. They did not buy it, they bought the entire component, pretty much. But then you fixed it to the bow tie, they didn't provide everything, right? It was a fixing bow tie. So you have fixed a label, happens to be a large label, to a bow tie, and put it in the stream of commerce. So you're suggesting, I should conclude as a matter of law that constitutes marking under the step. You're suggesting that every manufacturing from buys a component has something manufactured to a more components, as you look at every nut, every screw, every bolt, as to look at the bag, look at the tie, see if there is more. Because if there is more, you can't put them on your car. Certainly, at a minimum, it seems that standing, there might be standing for the allegation of the fact that you marked, it seems at a minimum, that that would be something that maybe should go forward to America. And then what do you do with people now, when you have to have intent, and you bought it from a third party, and you put it on you? Now we have a conspiracy with J.M.C. Bowen, and Brooks Brothers saying, oh, we're gonna put this together in 12th-October. She's a question to you, raising our excellent ones that go to America. The question is, what should we do with standing, is he any person who has a right under the statute to bring suit for the penalty that has been decided by Congress? You could decide, without saying this case back, that you need not a way, taking more than a selection, but you do have a problem with sending it back and having a recreating that is futile, because it's not gonna get passed Joe Stein. It's simply just not. The law of the case is Brooks Brothers was there. That's the law of the case. And if, that's the thing that's not. Excuse me. Excuse me. Does that remind me now? And you don't get passed Blue Money? Blue Money says, number one, you have to have to take the rise injury that's not happening at all. It has to be tied to the person who did the more. That's Blue Money, too. Blue Money, three, says- Why is it sovereign interest of the government and having its laws enforced, adequate under Vermont agency? Well, because Vermont agency really didn't get to that. It's, Vermont agency's kind of interesting. Judge Scalia says there is, he goes through the issues with regard to standing and what is the claim. And then in the dissent, Judge Stevens said, there's a sign, we're doing a full assignment to the government. Scalia comes back and says, no, it's a partial assignment. Partial assignment of the government's claim. Now, when you get into, there's a second circuit page, and it looks at that and says, the Supreme Court never really defined further what it claimed is. So this is in physician's health, it's a second circuit page, and it comes and says, and Blue Hans struck down a citizen's suit in endangered species. And in doing so, the court expressly held the Congress cannot grasp and go party as no concrete interest in the suit, other than a public interest in a proper administration of justice. Was that a Quikam suit? I, it was not a Quikam suit. No, it wasn't. So it wasn't a suit in which Congress had actually said any person may bring suit. So so more suggesting than that every suit is to be looked at differently. We have different standards. You still have. Actually, I'm not suggesting anything. Congress said it in the statute. Well, this isn't a, Judge Moore proclamation, any person may sue for the penalty. Don't you think that distinguishes this statute from the one an issue in Blue Hans, which did not delegate to any person the right to bring suit? Well, first of all, where does the injury come from? You still have a particle three injury. But nevertheless, you get back to suit three. There is no calling of the competition. Others are delicous. Others are getting it from another source, presumably, J. M. C. Brown. And Brooks Brothers, under the law of this case, is not the marker

. It has to be tied to the person who did the more. That's Blue Money, too. Blue Money, three, says- Why is it sovereign interest of the government and having its laws enforced, adequate under Vermont agency? Well, because Vermont agency really didn't get to that. It's, Vermont agency's kind of interesting. Judge Scalia says there is, he goes through the issues with regard to standing and what is the claim. And then in the dissent, Judge Stevens said, there's a sign, we're doing a full assignment to the government. Scalia comes back and says, no, it's a partial assignment. Partial assignment of the government's claim. Now, when you get into, there's a second circuit page, and it looks at that and says, the Supreme Court never really defined further what it claimed is. So this is in physician's health, it's a second circuit page, and it comes and says, and Blue Hans struck down a citizen's suit in endangered species. And in doing so, the court expressly held the Congress cannot grasp and go party as no concrete interest in the suit, other than a public interest in a proper administration of justice. Was that a Quikam suit? I, it was not a Quikam suit. No, it wasn't. So it wasn't a suit in which Congress had actually said any person may bring suit. So so more suggesting than that every suit is to be looked at differently. We have different standards. You still have. Actually, I'm not suggesting anything. Congress said it in the statute. Well, this isn't a, Judge Moore proclamation, any person may sue for the penalty. Don't you think that distinguishes this statute from the one an issue in Blue Hans, which did not delegate to any person the right to bring suit? Well, first of all, where does the injury come from? You still have a particle three injury. But nevertheless, you get back to suit three. There is no calling of the competition. Others are delicous. Others are getting it from another source, presumably, J. M. C. Brown. And Brooks Brothers, under the law of this case, is not the marker. There's no way to get around that. Well, but Congress can create rights, the violation of which gives standing. That's worth resettling. Why isn't that, and clonetack? Why isn't that what happened here? Because we attacked it on 12 being one, and we showed, there was no injury. We showed through decorations that were admitted, that we knew, never rebutted, never questioned, the government never questioned the veracity of those definitions. The government takes position, it has no interest in the underlying claim of Mr. Statham. The government is here to defend a statute, it wasn't attacked. And all that all that Judge Stein said was when you bring in action, please, plead it with specificity so that the court can go forward. The district courts are eight keepers. They, excuse me, this is a matter of fact. The district courts are gatekeepers, and they have to deal with entry to get them. And if out of the starting block, you're gonna say, any type of pleading is okay, and we don't care about facts that are properly considered, then you make chaos in the federal district court. And I get back to, sorry to say, there is a factual attack, and the factual attack, really you, has to, is not the no vote, is whether or not Judge Stein made an error considering those after they were outside, whether it's properly and that Brooks Brothers is not the mark, you may disagree with the conclusion, but you cannot reverse it just because you disagree. You have to find it is absolutely wrong. Do you have anything to say about the government's right to intervene? I understand the government's motion to intervene is Judge Stein raised the level so high on standing, that it somehow eviscerates the statute. No, but it's a question of constitutionality of the statute in a chart 24 or three. Well Judge Stein says I don't reach the constitutionality of the statute. And so what does that do, and the government's right to intervene? On constitutionality, I think it destroys it. How about under rule 24? Well rule 24, if I understand it, is that there needs to be an interest, and the government has no interest in this proceeding, please not in the end game. The government has, the government cannot bring it in. Isn't it precisely the end game that the government has an interest in? But that doesn't give you stand in. The end game, whether you've entered the use of measure, does not give you stand in. Would the government have had a patent to bring the suit itself? It doesn't appear so, but it did. It did. If it wants to do it tomorrow, we can. I don't know the answer to that question. I do think it's interesting in Vermont agency, person is not a state. So perhaps a nist, a person is not the government

. There's no way to get around that. Well, but Congress can create rights, the violation of which gives standing. That's worth resettling. Why isn't that, and clonetack? Why isn't that what happened here? Because we attacked it on 12 being one, and we showed, there was no injury. We showed through decorations that were admitted, that we knew, never rebutted, never questioned, the government never questioned the veracity of those definitions. The government takes position, it has no interest in the underlying claim of Mr. Statham. The government is here to defend a statute, it wasn't attacked. And all that all that Judge Stein said was when you bring in action, please, plead it with specificity so that the court can go forward. The district courts are eight keepers. They, excuse me, this is a matter of fact. The district courts are gatekeepers, and they have to deal with entry to get them. And if out of the starting block, you're gonna say, any type of pleading is okay, and we don't care about facts that are properly considered, then you make chaos in the federal district court. And I get back to, sorry to say, there is a factual attack, and the factual attack, really you, has to, is not the no vote, is whether or not Judge Stein made an error considering those after they were outside, whether it's properly and that Brooks Brothers is not the mark, you may disagree with the conclusion, but you cannot reverse it just because you disagree. You have to find it is absolutely wrong. Do you have anything to say about the government's right to intervene? I understand the government's motion to intervene is Judge Stein raised the level so high on standing, that it somehow eviscerates the statute. No, but it's a question of constitutionality of the statute in a chart 24 or three. Well Judge Stein says I don't reach the constitutionality of the statute. And so what does that do, and the government's right to intervene? On constitutionality, I think it destroys it. How about under rule 24? Well rule 24, if I understand it, is that there needs to be an interest, and the government has no interest in this proceeding, please not in the end game. The government has, the government cannot bring it in. Isn't it precisely the end game that the government has an interest in? But that doesn't give you stand in. The end game, whether you've entered the use of measure, does not give you stand in. Would the government have had a patent to bring the suit itself? It doesn't appear so, but it did. It did. If it wants to do it tomorrow, we can. I don't know the answer to that question. I do think it's interesting in Vermont agency, person is not a state. So perhaps a nist, a person is not the government. I don't know, but the statute says any person can bring it, essentially on behalf of the government. It doesn't say the government can bring it. That question was never raised. I think it's an interesting one, but I think Vermont agency and who is a person, and then you look at the statute and it says, bring it up to half the government. I don't think the government can bring two not two for the, I don't think the public government will bring it to none. I don't think it's an nist statute. In their court, they have no sovereign interest in itself. In this idea of a sovereign interest, oh, I want to see the laws enforced, you're inviting everybody into every court house with, we're going to take on and bring it and see that the government is vindicated. Now, as I'm saying, we would apply to any patent infringement, so because the government has an interest, and it's great to be patent being upheld if it's valid. Excuse me, I'm sorry, I'm just following up in your comment that the government always has an interest, or so often has an interest that would be no limit to its right. But I don't think her vigilante is an eye. 292A is a criminal provision, who would pursue that? That could be the government, but that's, we're not in 292A. Okay, thank you. Thank you. I have six seconds less. How do you reserve it? No, I think you've consumed your time. Thank you. Thank you, Mr. Stauffer. You have a minute remaining. Thank you, Judge Reader. Let's come back. You're opening up about these 10, the most important bowtie in the entire case thus far is the one I'm wearing right now. Because this falsely-mortem bowtie, the crowded hexagon bowtie, is one of several styles that Brooks Brothers made and falsely-mortem months after being served with my appropriately eliminating complaint. They suggest that they never saw this, this is written, I'm going to come back to a more specific point. I believe that the court may have finding that Brooks Brothers was not a marker. And of course, Brothers is clearly a fixture, and that's what the plain language of the statute requires for 10 days. They did something dislabel, which they lied to GMC, right next to their own trademark label. They hand stitched the trademark name just like they do the GMC logo, the GMC logo coming from a staff market label

. I don't know, but the statute says any person can bring it, essentially on behalf of the government. It doesn't say the government can bring it. That question was never raised. I think it's an interesting one, but I think Vermont agency and who is a person, and then you look at the statute and it says, bring it up to half the government. I don't think the government can bring two not two for the, I don't think the public government will bring it to none. I don't think it's an nist statute. In their court, they have no sovereign interest in itself. In this idea of a sovereign interest, oh, I want to see the laws enforced, you're inviting everybody into every court house with, we're going to take on and bring it and see that the government is vindicated. Now, as I'm saying, we would apply to any patent infringement, so because the government has an interest, and it's great to be patent being upheld if it's valid. Excuse me, I'm sorry, I'm just following up in your comment that the government always has an interest, or so often has an interest that would be no limit to its right. But I don't think her vigilante is an eye. 292A is a criminal provision, who would pursue that? That could be the government, but that's, we're not in 292A. Okay, thank you. Thank you. I have six seconds less. How do you reserve it? No, I think you've consumed your time. Thank you. Thank you, Mr. Stauffer. You have a minute remaining. Thank you, Judge Reader. Let's come back. You're opening up about these 10, the most important bowtie in the entire case thus far is the one I'm wearing right now. Because this falsely-mortem bowtie, the crowded hexagon bowtie, is one of several styles that Brooks Brothers made and falsely-mortem months after being served with my appropriately eliminating complaint. They suggest that they never saw this, this is written, I'm going to come back to a more specific point. I believe that the court may have finding that Brooks Brothers was not a marker. And of course, Brothers is clearly a fixture, and that's what the plain language of the statute requires for 10 days. They did something dislabel, which they lied to GMC, right next to their own trademark label. They hand stitched the trademark name just like they do the GMC logo, the GMC logo coming from a staff market label. So I can't see how they don't have a tent. They see the market, they put it on their product, and it's right there. Also, the Lugian, the court distinguish the case of a bounty from the case that was before an Lugian. So I think that's kind of a distinguishing factor. Also, I would know that- Thank you, Mr. Stoffer. Thank you, sir. Please judge. Mr. Letter. Mr. Letter, have time remaining? Yet, consume time passed this time. I do not know. We'll give you a minute, Mr. Letter. Thank you, Your Honor. I have three points to make all addressing questions that you ask, and that the argument was made. First, Judge Moore, I'm sorry. I never got to give the full answer to your question before. The United States has a sovereign injury here. We have a proprietary injury. We have a proprietary interest in the fine. If on the merits, it is eventually determined that Brooks brother filed a disassure. So we have both. Second, you cannot ignore the history of key camp. That's the message from the Vermont case. The Constitution is applied with reference to the history of how this country has operated. Third, my closing counsel says, you have to have an injury for Article 3. That's the Supreme Court said, no

. So I can't see how they don't have a tent. They see the market, they put it on their product, and it's right there. Also, the Lugian, the court distinguish the case of a bounty from the case that was before an Lugian. So I think that's kind of a distinguishing factor. Also, I would know that- Thank you, Mr. Stoffer. Thank you, sir. Please judge. Mr. Letter. Mr. Letter, have time remaining? Yet, consume time passed this time. I do not know. We'll give you a minute, Mr. Letter. Thank you, Your Honor. I have three points to make all addressing questions that you ask, and that the argument was made. First, Judge Moore, I'm sorry. I never got to give the full answer to your question before. The United States has a sovereign injury here. We have a proprietary injury. We have a proprietary interest in the fine. If on the merits, it is eventually determined that Brooks brother filed a disassure. So we have both. Second, you cannot ignore the history of key camp. That's the message from the Vermont case. The Constitution is applied with reference to the history of how this country has operated. Third, my closing counsel says, you have to have an injury for Article 3. That's the Supreme Court said, no. In the Vermont case, the United States Congress can partially assign its interest. As we point out in pages four and five of our rep library, there are any number of statutes in the US code where the US government can bring actions. And it does not have to show an injury. Congress passes a regulatory statute, and this court has made clear in cases like contact. There is an injury to the public because Congress has passed this regulatory statute. So that we don't have to show some sort of separate injury. That is absolutely wrong. And that's where Judge Stein came up with a theory of Article 3 that has absolutely no precedent in the Constitution of O'Wase. It has been interpreted. Now, I'm going to prevent you from getting here three points, but I don't see how the penalty creates a proprietary interest in the government. A proprietary interest is injury to the government. A penalty that imbues from violation of law. In my mind, doesn't fit the proprietary interest case also. You tell me your best cases in my quickly. About two seconds. Well, we sit in our own ring brief. Under the False Claims Act, remember, there is a false claim to act cause of action by either the United States or a later simply to seek penalties. Thank you, Mr. Letter. Thank you very much.

First case this morning is Stoffer versus Brooks Brothers. Mr. Stoffer? Madam sir, one minute for a bottle. Yes. Thank you. Good morning waters. May the persuade the court on a raised staffer and I am any person which is the only standing requirement that the false marketing statute it poses upon date. Before discussing any injury in fact I would note that on June 10th of this year a panel in this court reached the merits of people on versus solo cup by affirming a summary judgment of no liability for false marketing in favor of solo cup. That decision is significant for the following reasons. The plaintiff, people on was a registered patent attorney and therefore by definition he was not in competition with solo cup. I am also a registered patent attorney. The counsel standing wasn't raised in that case and the issue wasn't decided by the court. But it was raised below in that court and the court could have reached it and every federal court has an obligation to assure itself that it has subject manager or a jurisdiction before it reaches the merits of a failure to the court to reach it necessarily means it wasn't decided. Okay. Well then I also believe that this court's dip did in forest group which was a case between two competitors further supports not competitor standing because in forest group this court noted that the plain language of the statute allows false marketing litigation by plaintiffs who have not suffered any direct harms. Those starry decisives observations notwithstanding, Berksboro is a decade long practice of falsely marking their bow ties and their post complaint decision to continue falsely marking their bow ties has caused numerous direct harms to meet to other members of the public to competitors and to the United States. Mr. Stahl, is this a key time case? Yes it is. But is this standing required for a key time case? I believe it is under the doctrine of assignment in Vermont agency. I believe that I have standing based on assignment of the United States injuries. I also think that I'm also a traditional plaintiff insofar as Judge Stein noted that I had injuries in footnote 7 of the case that would have allowed me to be a traditional plaintiff but not a key time plaintiff. I believe that if I didn't understand the distinction. It isn't your best argument that when you started out with any person? Yes sir, any person. I believe that in people not the district court came with the conclusion that anybody who stepped forward on behalf of the United States government has standing but just in case that bait doesn't catch fish, I want to further argue that this court was coming up. Are you appearing to assist the U.S. government or are you appearing because the statute says you can't do that. Yes sir, yes I can. That's why I'm here. Respectable. You're helping the U.S. government or not? Yes indeed. This court in Clometac recognized the first of my injuries by noting that Congress intended the public to rely on Marky as a rainy means of discerning the status of intellectual property embodied in an article of manufacture or design. By further noting that the public is clearly injured or full-smarting because the active full-smarting must be to the public to believe that a patentee controls the order of the question as well as life particles. As filed in the complaint shows one that I saw the patent marking was on the court as both ties to the right of treating patents from the U.S. PDO website. Three, that I researched the prevailing patent act to determine the applicable limitation of patent term. Council, as I understand you're opposing council, they argue that Vermont agency stands for the proposition that sovereign injury alone would be insufficient basis to bring suit. I understand you to be arguing you have proprietary injuries on your own. Suppose that we instead are focusing on your standing in the shoes of the government in this quittam action. What are the proprietary harms that the government has suffered in this case? Well, the proprietary harms are that Brooks Brothers in addition to violating Section 292, we didn't as much think put what I believe is a counterfeit, excuse me, a counterfeit trademark on the product as well. Well, constitutes a violation of the Federal Anti-Train Mark County Fidding Act. And they are everywhere all of the bow ties that I'm born for Brooks Brothers is subject to potential repossession by the federal government because they are subject to compensation by the federal government. The violation of the trademark act seems like yet another sovereign injury to the government, but I'm having difficulty understanding the quenery. Well, the quenery is that this might be the property of the United States government, but I paid for it. So that's the injury where there's a potential dispute over the ownership of the products that I told you. Because of their violation of the Federal Anti-Train County Fidding Trave Mark Act, the government could repossess or compensate all of the forcing more products under that statute alone. So because of that violation of the statute, the property ownership is in dispute. Somehow falsely marking a patent number after expiration is a violation of a trademark act? No, no, but the ribbon that is placed along the ribbon that is placed along the 25 piece, full of five trademark numbers. And it refers to the original adjustment of last time to break. But we are deciding today whether you have standing to bring a key-tam suit under 292, not whether you have standing to bring a suit under a trademark counter-agricent statute. And Lucia and I think stated that it doesn't matter from whence the injury derives from standing purposes. Well, you may have fallen down on the courthouse steps and been injured and haven't yet another suit against somebody for that, but that's not what we're here to decide. We're here to decide standing for 292, an unrelated, which this is injury, seems to me awfully difficult to raise standing for something that is completely unrelated to. Well, this is so unpolished. The fact that one of these huge statutes, the Federal Anti-Train Fidding Trave Mark Act says they are home in just a large trademark, is a violation of the situation. Is that the basis for your suit? Are you suing under a violation of the trademark statute? No, I'm suing on the basis of 292, but again, it doesn't matter where the injury comes from. And if we're looking for a proprietary injury, that counterfeit statute says that any counterfeitly marked products are subject to confiscation by the government. So every vote time that I vote, that contains a just a locks trademark counterfeit mark is subject under that statute, and therefore we don't know who the property right is. It could be... I am really finding the argument difficult to understand and appreciate. So perhaps you could go back under one case fall as it says, a completely unrelated injury that has nothing to do with the statute and issue or the injury from violation of the statute and issue could not be. But nonetheless, give standing to someone to bring suit under that statute. I believe in the new year and versus defenders of wildlife. Justice Scalia said that it makes no difference from where the basis of the injury comes from to support the government. But that's not a 292 suit. It's not, but the fact that they're kind of known together because of the commonality that's in the label, both the false patent markings and the counterfeit trademark. I feel the one to stay while you're using these shut down arguments all over the place. All I mean is because proprietary is going to stop someone to 92. You're right out here today under 292. That's a statute I'm appearing under. But in so far as the defendants wanted to make a debate out of sovereign and proprietary without winning to any case that has held that that's the distinction in the 292 case, I did a little bit more research and I found out that if you put a counterfeit trademark on a product that it opens it up to the public. I'm not saying that my government therefore has government property potentially and there's the proprietary danger. But there has to be traceability that you cannot trace to 292. Well, I asked to be traced to the statute upon which you're relying for standing. You can't trace that to 292. With what do you expect? I think the rhetoric and lusian. You're in the rebuttal time. Would you like to keep it? Oh, yes, I'd like to keep it. Thank you. Mr. Letter. May I please the court? I'm Douglas Letter from the United States Department of Justice. With me today is John Fargo from the Civil Division of Justice Department. I think it's well known to you. I do want to reserve two minutes of time. If I could go straight to the more's question. The key really is here, the argument that the United States Congress under the Constitution may only assign proprietary rather than sovereign injury. Otherwise, this case is clearly governed by the Vermont Supreme Court opinion. Note that there is no arguing in favor of your right to intervene or Mr. Stoffer's claim. You are, I was going to argue entirely, Mr. Stoffer's claim. If the court wants to hear the intervention right, I will argue that this court has granted our motion to intervene in Mr. Stoffer's appeal. So I thought that was done. Wait a minute. Don't you want to, to Zolaurea, it's a good point because don't you want to intervene below as well? I understood there to be an appeal from the failure of the lower court to reach your motion to intervene below. So when, and if this were to go back, when the government want to be a part of it? You are actually the court denied our motion to intervene. That's what you're appealing from, really, isn't it? No, no, no, we are appealing from both. We thought you noticed that the appeal were appealing from the denial of intervention and the dismissal of the key tam complaint. But they made an allegation of unconstitutionality of the statute. You've got the right to intervene as a matter of right. Yes. We make that clear if we were to send this back. Absolutely. We have been denied that right thus far despite the clear constitutional challenge of the Second Amendment. Absolutely. You're our end. You know, my friend Mr. Baker will argue, well, the district work didn't reach the constitutional issue. I see that that's absolutely wrong. We were to remand, they certainly were. That is true. I know it's serving a public interest injury as well as a sovereign interest injury. What is your basis? I view those as together here. I don't view those as separate. The United States has a sovereign interest to prevent the fall. The investing problem, of course, the sovereign interest injury is based on the violation of a statute. Correct, Your Honor. And then we'd have to look at whether there was any intent to violate in this case to see if there's a violation. And you have an awful lot of trouble getting up by Peckon, wouldn't you? We'd have had far more compelling facts than the ones that you're arguing for. The United States is not taking any position on the underlying merits. But see, the sovereign interest injury relies on a violation of the statute. Right. If there's no intent, there's no violation of the statute and you don't have a sovereign interest. That is absolutely correct, Your Honor. And so how do you get around Peckon? Because Mr. Stofer alleges in his complaint. And remember, we are just here on standing. That's all exactly. How do you assert a sovereign interest injury in light of Peckon, which requires you to show that there's an intent requirement and your facts are worse than the Peckon. Mr. Stofer alleges in his complaint, I think it's paragraph 124, is that the alleges that Brooks Brothers knew that they were putting an expired patent. On their product, as this court has said, that raises a presumption that there is an intent to deceive Brooks Brothers can at the merits of the case can attempt to defeat that. But that's clearly not a standing inquiry. In Peckon, they knew the patents that expired. Here we have evidence that there was no idea the patents were expired. And in fact, the markings were supplied by someone else, not even the plaintiff. Not even the defendant. You are those are merits issues. What you have to show intent to have a violation of the statute and that's required for a sovereign interest injury. But again, you are not at the standing stage. The complaint alleges that they had knowledge. They can stand is not just based on allegations. Of course, Your Honor. Now, Mr. So you have to get by at least the minor hurdle of showing some intent. And Peckon all really shoots a hole in your intent. So how do you get sovereign interest standing? You are. I'll try to back up. This court has held that when there is knowledge, there is presumed to be an intent. That is a rebuttable presumption. And at trial, as in Peckon, I'll remember Peckon was a trial. At trial, Mr. Baker and his client can prove that actually Mr. Stafford's allegation is wrong and they had no intent. But that's for trial. And you can't be relying on the clienteck. And I believe this court said it also in BonTool and in Peckon. There is a presumption, a rebuttable one, but it clearly can't be rebutted in a standing court. But even action for presumption is the government's position as I'm understanding it, that for purposes of standing, we assume everything in the complaint to be true, including the presence of intent. Exactly, Your Honor. We have to accept that no matter how wrong it may seem to us that we have to assume it is true and then just decide if true is their standard. That's exactly right. The district court made a very serious constitutional error at the standing stage. Again, it may be that Peckon will mean that Mr. Stafford will lose at the summary judgment stage or a trial, but he can't lose at the standing stage. That is clearly wrong. Why can you intervene when the judge didn't decide a constitutional issue? Well, did we or didn't, I'm sorry. We attempted a trial here entitled to several reasons, Your Honor. First, the judge... And I guess the question is here, isn't it? Yes, although it's the same. Which you've already decided, we've decided. Yes, you've granted intervention already, but again... Yes, yes. ...to answer your question, we can intervene for two reasons. One, the judge did rule on constitutional grounds. He held that under Article 3 of the Constitution, Congress cannot us make this kind of assignment. That's a clear constitutional ruling, despite the wording of the statute. Second, even if he did not do that, as we pointed out, we haven't been in the United States. It has a strong interest in this case. We have a monetary interest. You have to be on the rule 24A2. We're under 24A and B. It's permissive intervention, and we were entitled to intervene. Why is that the bounty awarded by the statute just like a wager on the outcome? You're under that. That's the argument that was made. And I actually was the government's attorney in the Vermont case. The same argument was made, the Supreme Court rejected it. The Supreme Court said we have several hundred years of history, of key damn stands. And Lohan also said that standing is not a mere pleading requirement. You have to support it as you would support every element on which you have the burden of proof. It's not based on pleadings. We don't assume anything, do we? You have to meet a minimum standard to assert your sovereign interest. Does Lohan say that? No, it does not. It doesn't say there's not a mere pleading requirement. Specifically says that it's not talking about the special category of cases where Congress has created a bounty in a relator. It specifically says that's different. And the state of Vermont, the Vermont case, make quite clear that there is article three standing. Now, the Mr. Maker says, ah, but there isn't because in the False Claims Act, the United States has an injury, damages. That's not correct. We pointed out in my brief, any number of circuits have held. There is a False Claims Act violation, even if the United States suffers no damage. This doesn't an FCA case. Right, but Vermont and the United States should face this case as Lohan was. Right, two cases. No, but the reason the False Claims Act is key here is because the Supreme Court said that there is article three standing in key tam cases. And what I'm trying to point out, this is like a False Claims Act case because a key tam relator under the False Claims Act has article three standing, even if there is no monetary damage to the United States. And Judge Raider, you want to check your time there? You're about a minute and a half over. What I would most like to do is answer your questions. So if you have further questions, I'd like to answer them because I think it's essential that I address wherever questions you have. Thank you. Thank you, you are. Mr. Baker? I'm morning. My colleague, Mr. McGonigal, is admitted to this court and he gets itchy when I start to talk. And he may want to pass me a note. I hope that doesn't offend the court at all. It depends on what the note says. If he asked me not to lunch, I'm not going to. What it sounds me is that, Judge, that's terrible. The Judge made a decision here and he made a back to a decision. He said, Brooks Brothers, it's not the marker. Now, if Brooks Brothers is not the marker, then there is no damage or injury. If that's merits, isn't it? No, it's under 12B1. Under 12B1, the court can look at the complaint and doesn't have to take everything is true. And if you look at Appidates, it was submitted. Appidates submitted by Mr. Dixon and Mr. Green. That demonstrated that. Number one, Brooks Brothers was not the marker. Let's get to base the basic standard. 292 says any person may sue. Doesn't that, to the extent that there's a standard requirement, imply standing? I don't think you can imply standing. Standing needs to be stated. And the problem here is you have a 40-page complaint that if you read the complaint and then line it up with the statute, and as DOJ says, it's not your job to go hunting for troubles in that complaint. A complaint should be short, it can speak concise, it should be factual. And when a complaint is of the nature that was submitted in this case, it is exceedingly difficult for the district court to deal with. It is 40 pages of truth. But didn't he claim missmarking? And isn't he any person? Look, that's like saying, on a person, this is missmark, there's liability. That is not the way you plead. No, it's not the question. This is missmarked. Oh, this is missmarked. This is missmarked by the marker, by the defendant, who had knowledge, who did it with the intended deceit, is how you would plead this case. That's merits. Excuse me? That's merits. You can do it. The case, you have standards of pleading. You have rule A, you have rule not. Rule not is a heightened standard of pleading when you get into fraud. The lower court didn't kick this case for a failure to properly plead. He kicked it for a lack of standing. He kicked it because standing was not planned. It did not say that there is no standing over 92 for anybody who brings this case. So would you then be satisfied with us? They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. They are not. You are not. You are not. What do you do with any sort of evidence? 40 years ago I learned the law of the case is not necessarily law, but it is the law of the case. We have a client in the court that the court did not mark. Somebody else did. JMC Bank. We also have a client in the court that the competition was not well because we have I mean number of times. But it's the same. But Brooks Brothers didn't mark. It doesn't lead to a dismissal for lack of standing. Brooks Brothers didn't mark, may result in a 12-B6 or something else. But that's not a dismissal for a standing. It's a 12-B1. When a 12-B1, the court can look outside the pleading. It was looking at today. It is determined whether or not there is standing. Because we've raised a factual attack. You have to defend. You have to look at what a 12-B1 is. You can look at a complaint and attack a patient. Facial attack is essentially what happened in this case cited by the government that showed standing in a Queentown. That was the secondary health care case where somebody came and said, on my Queentown, I have a right to sue. He was dismissed for standing. This appellate court looked at that denoubled. And they said, you know, you're right. We can look at this to know what this is. The question of law, you don't have standing because there's no provision in the app. This is not a judicial attack on this action. Artists was a factual attack on the complaint and the merits. And that can be decided under 12-B1. And under 12-B1, you can put in appidavits. And if the court did not look at our appidavits and consider them, that would be error. So the court looked at those appidavits. They looked at the complaint. They looked at the statute. And they said, Brooks Brothers is not the mark. And although Mr. Stauper says competition was well, competition was not well because when we did else does the same thing. Sacks goes the same. And then it's always learning to care. And as Judge Moore says, though, you're off the track. Maybe this case has the wrong defendant. Maybe with one defendant or another, I'll defend him in some of the merits. But we get back to the question of the plaintiff, standing, the statute. Standing, bars, injury, and there could be no injury. Where does it say injury in the statute? I, the third amendment, the United States, Court of Appeals, I'm not sorry. The Constitution requires, no. The Constitution requires that you have standing, and that you have an injury. You can't have just advisory. Are you challenging the constitutionality? No, not for an injury. By not requiring injury? I know very few statutes that require an injury. The statute will say, if you do, if you mean, look at 1125 A for the statute. It was brought up in Mr. Stafford's speech. No matter in that statute doesn't say injury. Stafford, the statute say, if you do this, you violate that there may be a remedy. And if there's a remedy, then we're going to go to court. But there's no remedy here because there is a factual find. You cannot. You cannot reverse judge on his factual finding that Brooks Brothers is not the marker. Clontax says that there's an injury every time the public sees a mismarking. How do you get around that? They see a mismarking, I struggle with contact. But they see a mismarking is by somebody who applied the mismarking. Maybe it's an injury, maybe it's not an injury. You have contact, however it was fact specific. And this is fact specific. In this particular case, you have serogenous facts that the district court found that it was right to do, and which cannot be reversed unless you find those findings are error, just because you disagreed with whether or not Brooks Brothers is a marker. It doesn't mean you can reverse it. Well, there isn't a finding. I've sat here while you're talking. The closest I can find is on page 10, where it says that Brooks Brothers presented evidence to that. But there's no finding that I can find this lower court decided that Brooks Brothers is not marking, and that's the reason for its holdings. I can't find that. Where ever it is. Show me where. Show me where since you spent so much of your time telling us this. Man, just hand this up and see. Now just tell me what page it's on. It says on, this is page five, Lexus. It's an A180 of the hand itself. A10, about A10 of the hand itself. And on page 810, where exactly? What's that? It's one of you. It's supposed to be more of the hand. Hold on, the opinion's only nine pages long. Just give me a second. I'll wear A10 like two. Okay, there we go. They A10. Got it. All right, so where is it? Start with more over, and it's, goes down, it says, and probably, the defendant submitted declarations and exhibits them by the defendant, and probably considered on which, they were probably considered. That's for the court's end. It's probably considered, which showed that the adjustable occupant mechanism with the mark in the question is a fix to it, is not made by the defendant's, but is instead provided to the defendant's and to many of them, the court's brothers and predators are getting dry. As shown in the ethics and declaration. So if you book a district out of the... You should have held this guy. This is a picture of the pardoned pie. This is what the pie looks like. These photographs are in the evidence. This is the component that is bought by Brooks Brothers. It's about 15, 20% of the time. It is sewn on to this tie by Brooks Brothers on which appears in Brooks Brothers later. Brooks Brothers did not mark this component. The component was marked by J.M.C. Bo. The J.M.C. Bo is the marker, and that's what Judge Vanley, the J.Better was not marked by Brooks Brothers. And that cannot be touched on a piece. That's a factual finding, Quich. The Biscuit and the Second Court of Appeals requires that you give deference to the court's by combined acting ability. What it's up to us to decide what it means to mark, right? That's a question of statutory interpretation, which is a question of law. All this court says is that as a factual matter, it appears from the pleadings and declarations submitted by you all that the label is provided by J.M.C. Bo time company. It's up to us to decide what the statute means when it says whoever marks. So if I were to conclude that by placing that label on the good and putting the good in commerce, you are, in fact, the marker, and that's a matter of statutory interpretation. It's not really a sign that they do as a matter of law. They did not buy it, they bought the entire component, pretty much. But then you fixed it to the bow tie, they didn't provide everything, right? It was a fixing bow tie. So you have fixed a label, happens to be a large label, to a bow tie, and put it in the stream of commerce. So you're suggesting, I should conclude as a matter of law that constitutes marking under the step. You're suggesting that every manufacturing from buys a component has something manufactured to a more components, as you look at every nut, every screw, every bolt, as to look at the bag, look at the tie, see if there is more. Because if there is more, you can't put them on your car. Certainly, at a minimum, it seems that standing, there might be standing for the allegation of the fact that you marked, it seems at a minimum, that that would be something that maybe should go forward to America. And then what do you do with people now, when you have to have intent, and you bought it from a third party, and you put it on you? Now we have a conspiracy with J.M.C. Bowen, and Brooks Brothers saying, oh, we're gonna put this together in 12th-October. She's a question to you, raising our excellent ones that go to America. The question is, what should we do with standing, is he any person who has a right under the statute to bring suit for the penalty that has been decided by Congress? You could decide, without saying this case back, that you need not a way, taking more than a selection, but you do have a problem with sending it back and having a recreating that is futile, because it's not gonna get passed Joe Stein. It's simply just not. The law of the case is Brooks Brothers was there. That's the law of the case. And if, that's the thing that's not. Excuse me. Excuse me. Does that remind me now? And you don't get passed Blue Money? Blue Money says, number one, you have to have to take the rise injury that's not happening at all. It has to be tied to the person who did the more. That's Blue Money, too. Blue Money, three, says- Why is it sovereign interest of the government and having its laws enforced, adequate under Vermont agency? Well, because Vermont agency really didn't get to that. It's, Vermont agency's kind of interesting. Judge Scalia says there is, he goes through the issues with regard to standing and what is the claim. And then in the dissent, Judge Stevens said, there's a sign, we're doing a full assignment to the government. Scalia comes back and says, no, it's a partial assignment. Partial assignment of the government's claim. Now, when you get into, there's a second circuit page, and it looks at that and says, the Supreme Court never really defined further what it claimed is. So this is in physician's health, it's a second circuit page, and it comes and says, and Blue Hans struck down a citizen's suit in endangered species. And in doing so, the court expressly held the Congress cannot grasp and go party as no concrete interest in the suit, other than a public interest in a proper administration of justice. Was that a Quikam suit? I, it was not a Quikam suit. No, it wasn't. So it wasn't a suit in which Congress had actually said any person may bring suit. So so more suggesting than that every suit is to be looked at differently. We have different standards. You still have. Actually, I'm not suggesting anything. Congress said it in the statute. Well, this isn't a, Judge Moore proclamation, any person may sue for the penalty. Don't you think that distinguishes this statute from the one an issue in Blue Hans, which did not delegate to any person the right to bring suit? Well, first of all, where does the injury come from? You still have a particle three injury. But nevertheless, you get back to suit three. There is no calling of the competition. Others are delicous. Others are getting it from another source, presumably, J. M. C. Brown. And Brooks Brothers, under the law of this case, is not the marker. There's no way to get around that. Well, but Congress can create rights, the violation of which gives standing. That's worth resettling. Why isn't that, and clonetack? Why isn't that what happened here? Because we attacked it on 12 being one, and we showed, there was no injury. We showed through decorations that were admitted, that we knew, never rebutted, never questioned, the government never questioned the veracity of those definitions. The government takes position, it has no interest in the underlying claim of Mr. Statham. The government is here to defend a statute, it wasn't attacked. And all that all that Judge Stein said was when you bring in action, please, plead it with specificity so that the court can go forward. The district courts are eight keepers. They, excuse me, this is a matter of fact. The district courts are gatekeepers, and they have to deal with entry to get them. And if out of the starting block, you're gonna say, any type of pleading is okay, and we don't care about facts that are properly considered, then you make chaos in the federal district court. And I get back to, sorry to say, there is a factual attack, and the factual attack, really you, has to, is not the no vote, is whether or not Judge Stein made an error considering those after they were outside, whether it's properly and that Brooks Brothers is not the mark, you may disagree with the conclusion, but you cannot reverse it just because you disagree. You have to find it is absolutely wrong. Do you have anything to say about the government's right to intervene? I understand the government's motion to intervene is Judge Stein raised the level so high on standing, that it somehow eviscerates the statute. No, but it's a question of constitutionality of the statute in a chart 24 or three. Well Judge Stein says I don't reach the constitutionality of the statute. And so what does that do, and the government's right to intervene? On constitutionality, I think it destroys it. How about under rule 24? Well rule 24, if I understand it, is that there needs to be an interest, and the government has no interest in this proceeding, please not in the end game. The government has, the government cannot bring it in. Isn't it precisely the end game that the government has an interest in? But that doesn't give you stand in. The end game, whether you've entered the use of measure, does not give you stand in. Would the government have had a patent to bring the suit itself? It doesn't appear so, but it did. It did. If it wants to do it tomorrow, we can. I don't know the answer to that question. I do think it's interesting in Vermont agency, person is not a state. So perhaps a nist, a person is not the government. I don't know, but the statute says any person can bring it, essentially on behalf of the government. It doesn't say the government can bring it. That question was never raised. I think it's an interesting one, but I think Vermont agency and who is a person, and then you look at the statute and it says, bring it up to half the government. I don't think the government can bring two not two for the, I don't think the public government will bring it to none. I don't think it's an nist statute. In their court, they have no sovereign interest in itself. In this idea of a sovereign interest, oh, I want to see the laws enforced, you're inviting everybody into every court house with, we're going to take on and bring it and see that the government is vindicated. Now, as I'm saying, we would apply to any patent infringement, so because the government has an interest, and it's great to be patent being upheld if it's valid. Excuse me, I'm sorry, I'm just following up in your comment that the government always has an interest, or so often has an interest that would be no limit to its right. But I don't think her vigilante is an eye. 292A is a criminal provision, who would pursue that? That could be the government, but that's, we're not in 292A. Okay, thank you. Thank you. I have six seconds less. How do you reserve it? No, I think you've consumed your time. Thank you. Thank you, Mr. Stauffer. You have a minute remaining. Thank you, Judge Reader. Let's come back. You're opening up about these 10, the most important bowtie in the entire case thus far is the one I'm wearing right now. Because this falsely-mortem bowtie, the crowded hexagon bowtie, is one of several styles that Brooks Brothers made and falsely-mortem months after being served with my appropriately eliminating complaint. They suggest that they never saw this, this is written, I'm going to come back to a more specific point. I believe that the court may have finding that Brooks Brothers was not a marker. And of course, Brothers is clearly a fixture, and that's what the plain language of the statute requires for 10 days. They did something dislabel, which they lied to GMC, right next to their own trademark label. They hand stitched the trademark name just like they do the GMC logo, the GMC logo coming from a staff market label. So I can't see how they don't have a tent. They see the market, they put it on their product, and it's right there. Also, the Lugian, the court distinguish the case of a bounty from the case that was before an Lugian. So I think that's kind of a distinguishing factor. Also, I would know that- Thank you, Mr. Stoffer. Thank you, sir. Please judge. Mr. Letter. Mr. Letter, have time remaining? Yet, consume time passed this time. I do not know. We'll give you a minute, Mr. Letter. Thank you, Your Honor. I have three points to make all addressing questions that you ask, and that the argument was made. First, Judge Moore, I'm sorry. I never got to give the full answer to your question before. The United States has a sovereign injury here. We have a proprietary injury. We have a proprietary interest in the fine. If on the merits, it is eventually determined that Brooks brother filed a disassure. So we have both. Second, you cannot ignore the history of key camp. That's the message from the Vermont case. The Constitution is applied with reference to the history of how this country has operated. Third, my closing counsel says, you have to have an injury for Article 3. That's the Supreme Court said, no. In the Vermont case, the United States Congress can partially assign its interest. As we point out in pages four and five of our rep library, there are any number of statutes in the US code where the US government can bring actions. And it does not have to show an injury. Congress passes a regulatory statute, and this court has made clear in cases like contact. There is an injury to the public because Congress has passed this regulatory statute. So that we don't have to show some sort of separate injury. That is absolutely wrong. And that's where Judge Stein came up with a theory of Article 3 that has absolutely no precedent in the Constitution of O'Wase. It has been interpreted. Now, I'm going to prevent you from getting here three points, but I don't see how the penalty creates a proprietary interest in the government. A proprietary interest is injury to the government. A penalty that imbues from violation of law. In my mind, doesn't fit the proprietary interest case also. You tell me your best cases in my quickly. About two seconds. Well, we sit in our own ring brief. Under the False Claims Act, remember, there is a false claim to act cause of action by either the United States or a later simply to seek penalties. Thank you, Mr. Letter. Thank you very much