Thompson v. U.S. and Waetzig v. Halliburton

Speaker 1 (00:00):

1095, Thompson versus United States. Mr. Gair?

Mr. Gair (00:04):

Mr. Chief Justice, and may it please the Court, Section 1014 punishes only false statements, not true but misleading ones. And we know that from the text, the context in the statutory code, and this Court's precedents. At the outset, at its most basic, the word false means not true.

(00:24)
It is, therefore, implausible to suggest that the statute that punishes false statements include some types of true statements. False and true but misleading are different concepts. When Congress means to prohibit both, it does so explicitly using both terms, as it has in over 100 places in the United States Code.

(00:48)
The government would put this all down to serial, thoughtless redundancy, but that violates the first principle of statutory interpretation, to heed the text. The courts below erroneously held that Section 1014 punishes misleading statements, in addition to false ones.

(01:08)
We are asking the Court to correct that legal error, and to remand to the courts below for determination of whether Mr. Thompson's statements were false or only misleading. I welcome the Court's questions.

Justice Thomas (01:23):

How would you define false? And how would you define and distinguish that from misleading?

Mr. Gair (01:30):

A false statement is one that is not true when compared to the objective facts. A misleading statement is a statement that depends on the reasonable hearer's understanding.

(01:47)
The term misleading is by its nature focuses on what the hearer hears. The term false relates to an objective fact about the universe.

Justice Thomas (01:57):

Do you think there could be overlap between the two?

Mr. Gair (01:59):

There definitely is overlap, Your Honor. Many, many false statements are misleading and many misleading statements are false, but that does not mean they are synonyms.

(02:11)
As this Court has recognized on a number of occasions, including in the Macquarie case, where the Court dealt with Rule 10b-5 and held that 10b-5's two parts.

(02:27)
The first penalized only express false statements, and the second half-truths, which it referred to as misleading omissions.

Justice Thomas (02:36):

Often we see false and misleading paired. And you think of it, there's a tendency to think of those two paired, false and misleading or false or misleading.

(02:50)
Why wouldn't we do that here, as opposed to just taking a literal view of false?

Mr. Gair (02:56):

So when we see them in these 100- plus statutes, it's always in the disjunctive, false or misleading, suggesting that those are two different things. And they do have different meanings because false is an objective question. If I say, "The sun rises in the West." That is a false statement, and it doesn't matter what the perception of the listener is.

(03:24)
So I think that there is a good statutory context argument, a very good statutory context argument for suggesting when Congress says false, it means false, not misleading. Otherwise, there would be 100 statutes from the Commodities Exchange Act to the Securities Exchange Act, to a number of labeling statutes, down to the Peanut Statistics Act.

(03:52)
And the act that penalizes false or misleading statements by an officer of the Administrative Office of the US Court to either make false or misleading statements. Congress chose not to do that here.

Justice Alito (04:05):

I take it you are not arguing that the statute requires that the statement be literally false when viewed in isolation?

Mr. Gair (04:16):

No.

Justice Alito (04:16):

Is that correct?

Mr. Gair (04:17):

I'm sorry, Your Honor.

Justice Alito (04:18):

Is that correct, that is your argument?

Mr. Gair (04:21):

That is not our argument. As this Court said in Bronston, and I would point the Court to Footnote 3. The context that's relevant is the question that's asked, not the other circumstances.

(04:34)
But obviously, it would be absurd to try and judge a statement in isolation from the question that it answers.

Justice Jackson (04:43):

So can I just ask you…

Justice Barrett (04:45):

Oh, sorry.

Justice Jackson (04:46):

Even if we accept or agree with you that the statute covers only false statements, based on what you've said you believe a false statement is, I guess I don't understand how that helps your client in this case.

(05:02)
Because the amount of money that he borrowed or that he owed, I would think is a knowable fact with one correct answer. And that it doesn't rely on any perception of the hearer or whatnot, however you've defined misleading. So why would we send this back for the lower court to assess?

Mr. Gair (05:24):

Your Honor, I'm sorry.

Justice Jackson (05:27):

Yeah.

Mr. Gair (05:27):

I point out at the outset, Your Honor, that neither of the lower courts applied the standard to the facts in the case, and so this Court would be doing it for the first time.

(05:36)
But the statements that were made here, the prosecutor explicitly told the lower court, and this is Joint Appendix 144. What Mr. Thompson said was literally true, but it was not the whole truth.

(05:51)
Mr. Thompson was never asked, "How much did you borrow?" And did not, therefore, respond, "I only borrowed $110,000."

Justice Jackson (06:01):

My understanding was that he wasn't asked anything. He was sent an invoice after the bank closed. And the invoice listed the various loans that he had made and the amount of interest that, according to the statement, he owed in total.

(06:20)
So I don't understand why that's not tantamount, his response. His apparently three times going back and saying, "No, I owe $110,000." Why is that not a false statement in that context?

Mr. Gair (06:34):

The invoice didn't have the details. It said the unpaid principal balance was $269,000. So if we take that as an implicit question, "Do you owe $269,000?" His statement was, "I borrowed $110,000. I had a promissory note for $110,000." That statement, "I borrowed $110,000 on a $110,000 promissory note," is absolutely true.

(07:03)
There were no other notes concerning the later advances. And what Mr. Thompson did, if you consider the invoice to be an implicit question, was effectively to change the terms of the question from how much the principal balance was, how much he owed, to what he borrowed in a particular note.

(07:22)
And that brings it squarely within the rule of Bronston, where everyone knew that Mr. Bronston was being asked whether he had ever had a personal Swiss Bank-

Justice Jackson (07:32):

Would we have to have to assess at all the reasonableness of that interpretation on his part? In other words, it seems to me that you could also interpret the invoice as asking him to verify, "How much did you borrow? How much do you owe?"

(07:48)
If that's the question, then to respond $110,000 when there are other obligations outstanding is false.

Mr. Gair (07:57):

I don't think so, because if the question is how much you owe, that's a different issue than borrow. And Mr. Thompson gave an answer that was actually true.

Justice Kagan (08:08):

Sorry, how is it different from borrow?

Mr. Gair (08:10):

Because obviously, what you owe depends, a great deal of what you owe is the interest on the loans.

(08:17)
So Mr. Thompson in effect, in fact, borrowed $219,000. He got an invoice saying you owe $269,000, and his response was a true response.

Justice Kagan (08:29):

Well, but either way, it wasn't $110,000.

Mr. Gair (08:32):

That's right. And if he had said in response, "I only borrowed $110,000 and not a penny more," then his statement would've been false, but he didn't say that.

(08:42)
What he said was, "I borrowed $110,000, I had a promissory note for $110,000." It's misleading and we concede that, but it is not false.

Justice Barrett (08:52):

Do you regard it-

Justice Sotomayor (08:52):

I'm sorry. Go ahead.

Justice Barrett (08:55):

Do you regard it as a material omission case? I'm just trying to figure out.

(08:59)
I agree with you there's a distinction between as the Sixth Circuit opinion distinguished between material omissions, and concealment and falsity.

(09:07)
What do you think your case falls into? Is it a material omission of the other $169,000?

Mr. Gair (09:12):

I think that's the right way to look at it, Your Honor. It's what this Court in Macquarie called a half-truth.

(09:19)
Some information has been given, other information that would be necessary to make the statement completely true has been left out.

Justice Barrett (09:30):

I guess I just see a difference between what your client said and some of the hypotheticals in your brief. Like you gave the example of a borrower who tells the lending institution, "Well, I have a lower interest rate offered someplace else." But doesn't mention that that requires a much bigger down payment. I can see that as an omission.

(09:50)
It's a material omission insofar as you're trying to represent it as a better deal that you're trying to get them to match. But it's true, the assertion. You can separate out the interest rate from the amount of the down payment. And you look at what the statement is asserting, what it's asserting about the interest rate is true.

(10:09)
I guess yours is just a little, I just see your client's as different. Because maybe, maybe it's because what he's asserting, and I think these are the questions you're getting from Justices Kagan and Jackson, sounds an awful lot like, "All I owe is $110,000."

Mr. Gair (10:26):

Well, the perception of the listener could have been that.

(10:31)
But, in fact, it wasn't, as the testimony made clear, that the listener actually thought that he just didn't know how much he borrowed.

Justice Kagan (10:38):

Isn't it a lot like the-

Justice Roberts (10:41):

Go ahead.

Justice Kagan (10:42):

Like the example that's given in Bronston, where you've entered a store 50 times and you say, "I entered the store five times." And that's true, in the course of entering the store 50 times, you entered it five times.

(10:57)
But it's obviously false, if what the purport of the statement is is, "I entered it five times, rather than 50 times." And the same thing here, "I owed $110,000, rather than $260,000."

Mr. Gair (11:15):

I don't think so, because the principle set forth in Bronston in that footnote, is that understating a number in response to a specific numeric inquiry is a false statement.

(11:27)
Mr. Thompson did not understate the number in response to a specific numeric inquiry about how much he borrowed.

Justice Kagan (11:34):

I guess I don't know exactly where this requirement of a specific inquiry comes from. There can be various contextual things that go to whether a statement is true or false. One of them is what did they ask you? But there are other ways in which…

(11:50)
If I say I made $100,000 and I'm speaking of Canadian dollars, but everybody listening to me is thinking you're in the United States, of course, they're thinking American dollars. That's just false if I say I made $100,000 and, in fact, I made $70,000 or $130,000, or whichever way the exchange rate goes.

(12:14)
So I guess I don't get this like, "Oh, it's got to be an inquiry." There was an implicit inquiry here. The guy was calling to say, "You got the number wrong." It's just as if somebody had said, "Did we get the number wrong?" And he said, "You got the number wrong. It's $110,000." When it was, in fact, $260,000.

Mr. Gair (12:34):

I don't think so, Judge or Your Honor, because the statement he made was tied to the personal note, and that was true also of the call with the FDIC. It's true that a statement that is volunteered can be a false statement. So if Mr. Thompson had walked into the bank and shouted, "I only borrowed $110,000 and not a penny more," that would be a false statement.

(13:00)
But instead, what happened is that there's this invoice about what he owed, and he made a statement about what he borrowed under his personal note. And I think that the clearest evidence that that is not a false statement, comes from the government's concession on our motion for judgment of acquittal.

Justice Sotomayor (13:22):

I'm totally confused, okay? He took the statement the bank sent to him. I'm quoting him, "I have no idea. The numbers you sent me shows that I have a loan for $269,000. I borrowed $100,000, period."

(13:46)
So if he borrowed $219, $215, $150, $160, it wasn't the $100,000 he said. I don't see how that's literally true. That's literally false.

Mr. Gair (14:06):

Your Honor.

Justice Sotomayor (14:06):

He borrowed more than he said he did.

Mr. Gair (14:11):

Justice Sotomayor, I think that by putting the period after the $110,000, we're not getting the full context of the statement.

(14:19)
He said a few more words about the circumstances and then he said, "I had a note for $110,000." So that I think that his statement-

Justice Sotomayor (14:28):

So he had a note for $110,000 might be true, but he was asked, "What did you borrow?" And he said, "Only $100,000."

Mr. Gair (14:40):

With respect, Your Honor-

Justice Sotomayor (14:41):

I don't understand how this is, I think, where Justice Barrett is confused, which is if the question is did you enter 50 times?

(14:54)
And he says, "I only, I entered 10 times." It's not literally true. It's literally false that he entered 10 times.

Mr. Gair (15:05):

I agree that the hypothetical is a false statement, but Mr. Thompson was not asked how much he borrowed. The implicit question is what the total debt was.

Justice Sotomayor (15:16):

All right. So as I read the jury instruction here, the jury instruction didn't use the word misleading. It said, "Was his statement false?"

Mr. Gair (15:24):

Correct.

Justice Sotomayor (15:25):

So the issue here now is would a rational juror have concluded that this was a false statement, correct?

Mr. Gair (15:34):

That's correct, Your Honor.

Justice Sotomayor (15:36):

So I hate the word literally, because I don't know what it means. I think that the question is did he make a false statement?

(15:46)
And could a rational jury have understood him to have made a false statement in the way that I read this?

Mr. Gair (15:55):

And that goes back to the question presented in the procedural history, Justice Sotomayor.

Justice Sotomayor (15:59):

No, that goes back to do you get a directed verdict or is this an issue that we leave for the jury?

Mr. Gair (16:12):

It is.

Justice Sotomayor (16:13):

So do we vacate and remand for the court below to decide that?

Mr. Gair (16:17):

I think you have to vacate and remand for the court below to decide it, because neither of the courts below reached this issue.

(16:25)
Both believed they were bound by a Seventh Circuit precedent called Freed, to hold that it didn't matter whether it was false or misleading. The statute captured misleading statements.

Justice Sotomayor (16:36):

All right. Thank you.

Justice Kagan (16:37):

Well, however the district court-

Justice Roberts (16:38):

We've been talking about what your client thought or knew, maybe he did this or that, does that matter at all? Is it a different case if your client can say, "I thought they meant the amount of the first loan and it was $100,000"?

(16:54)
Or if there's evidence he went back and says, "Well, they asked me this and I know they're talking about $ 269,000, but I think I might be able to fool them or something if I say $110,000." Is it the objective listener, how that person would understand it?

(17:13)
Or do you go back and say, "Well, if he knew about it then it definitely is false, but if he had was confused then maybe it's not false"? Does the statement vary depending upon what the defendant knew?

Mr. Gair (17:26):

No, it doesn't, Mr. Chief Justice. First of all-

Justice Roberts (17:29):

So just to be clear then, then that means all the discussion about what he thought and all that and how reasonable, that's beside the point?

Mr. Gair (17:35):

It's absolutely beside the point. Truth and falsity, when Congress uses the term false, because it often uses the term misleading, which points to the perception of the listener.

(17:46)
We know when it says false, it means something objective.

Justice Kavanaugh (17:49):

Well, there still has to be a mens rea though, right?

Mr. Gair (17:52):

And there is. The question, though-

Justice Kavanaugh (17:53):

So it has to be false and you know it's false to be convicted, correct?

Mr. Gair (17:59):

Right. The evidence of his mens rea, the mens rea actually has two parts.

(18:07)
One is that it has to be knowing, and the other it has to be for the purpose of influencing the institution.

Justice Kavanaugh (18:12):

Right.

Mr. Gair (18:12):

And there was evidence in the record from which a jury could have found the mens rea, and we haven't challenged that.

(18:20)
But the mens rea is a separate element and the question of falsity.

Justice Kagan (18:25):

But are you saying that no reasonable jury could have found the statement to be false?

Mr. Gair (18:30):

That is our argument, Your Honor.

Justice Kagan (18:31):

No reasonable jury could have found the statement, "I owed $110,000," to be false?

Mr. Gair (18:40):

Yes, Your Honor. In the context of the question, if we go to the call with the FDIC, the FDIC agent said, "We didn't ask a question."

(18:48)
What we did was start out by talking about his personal note, and Mr. Thompson, in a question, a discussion about his personal note said, " I borrowed $110,000." That was absolutely true.

Justice Kagan (19:03):

Yeah, but-

Justice Kavanaugh (19:04):

The question presented… Go ahead.

Justice Kagan (19:08):

Because that is the important inquiry here, isn't it, right? When you say that the district court was under the misimpression from the Seventh Circuit precedent, that misleading was okay.

(19:19)
But, in fact, the instructions made clear that the statement needed to be false and the jury convicted on those instructions. So for you to win in the end, it has to be that no reasonable jury.

(19:36)
That's a pretty deferential standard that we give to the jury, no reasonable jury could have found this to be false.

Mr. Gair (19:43):

That's right, Judge, Your Honor.

Justice Kagan (19:44):

And if we don't think that, we should just say so, I take it, because otherwise, what's the purpose of vacating if we don't think that that's a particularly hard question?

Mr. Gair (19:54):

Well, this Court would typically, for prudential reasons, not be the first court to apply the law to the facts. And we think that the district court and the court of appeals are in a better position to assess that issue.

(20:10)
They didn't do that because they made a mistake about the law. So I do think that no rational jury in this context could have found that. And certainly, the district court could have made that determination but didn't reach it.

Justice Kavanaugh (20:24):

The question presented, and this supports what you just said. The question presented was just the legal issue, not will this Court parse the statements about a loan?

(20:37)
I don't know. That's not what I thought we were granting cert on. I thought we were granting cert on a legal question. We resolved the legal question.

Mr. Gair (20:45):

Justice Kavanaugh, I think that you're absolutely right. The invitation by my friends from the government here to delve into the facts, is I think not surprising given the strength of our legal argument.

(21:02)
But this Court granted cert to determine whether misleading statements are, in addition to false ones, are punished by the statute.

Justice Alito (21:10):

All right. Well, tell me again, what is the difference between a statement that is false in context?

(21:18)
Not literally false when viewed just by itself, but false in context and a statement that is misleading?

Mr. Gair (21:25):

So a statement, let's take an example of a statement that might be misleading. If I go back and change my website and say 40 years of litigation experience and then in bold caps say Supreme Court advocate, that would be, after today, a true statement.

(21:44)
It would be misleading to anybody who was thinking about whether to hire me or Mr. Francisco or Mr. Waxman. But a false statement would be if I had not ever argued in the United States Supreme Court.

Justice Alito (22:01):

Well, that's mildly misleading. Maybe at best it's, I don't know that that's going to mislead anybody, but at best, it's mildly misleading.

Justice Kagan (22:09):

Well, it is though the humblest answer I've ever heard from the Supreme Court podium, so good show on that one.

Justice Roberts (22:19):

Not so good for Mr. Francisco and Mr. Waxman.

Justice Alito (22:23):

As far as the question presented is concerned, okay. But maybe this, I don't know how this misleading idea even got into the case. This is just maybe sloppy work by the Seventh Circuit, but the instruction was you have to find that it's false. You could have argued that, "No, it has to be literally false viewed by itself."

(22:45)
You didn't argue that. In fact, my understanding is that the defense originally had asked for an instruction on literal falsity and then withdrew it, and then the jury found that the statement was false. And you're just saying no reasonable juror could view this as false in context.

(23:07)
That's an awfully hard argument, so what's the point of remanding this to the Seventh Circuit? Just this kind of a punishment for having introduced this misleading idea into the case?

Mr. Gair (23:18):

No, I definitely don't think the Court would want to do that, but this is an important statute that deals with people's dealings with sophisticated financial entities. And it is important for the Court to give some guidance on the question of whether a statement is misleading or false, precisely because the statute is so important and such broad application.

(23:42)
As the court knows, in the Wells case, this Court correctly found that there's no materiality element to the statute. So this statute could be used extremely broadly to punish a number of types of dealings between individuals and very sophisticated financial institutions.

Justice Gorsuch (24:01):

Counsel, along those lines in terms of whether a remand is worth it or not, I take it you don't dispute that you've got a tough row to hoe with the standard and no reasonable jury could have concluded. But here we have, as you say, an incredibly sophisticated questioner, the federal government no less.

(24:22)
And the question, if it is a question at all, it's a statement, "You owe $269." He responds, "I borrowed $ 110." The government itself says it understood him to be confused about how much he borrowed and how much he owed. And under those circumstances, we can make a judgment or we could maybe leave it to somebody else to do it in the first instance, them's our choices. Is that about it?

Mr. Gair (24:48):

I think that you've captured it, Justice Gorsuch.

Justice Gorsuch (24:55):

Context here is not a couple of unsophisticated entities or individuals who've never had any financial dealings, but you have a tough row to hoe.

Mr. Gair (25:07):

It's definitely a tough row to hoe whenever you're asking a district court to find that no rational jury could have found something.

(25:15)
But there's a lot of evidence from which we can make a solid argument, an argument that I believe is correct- but Mr. Deer, why hasn't, could you that out.

Justice Jackson (25:22):

But Mr. Gair, why doesn't-

Justice Gorsuch (25:23):

Could you spin that out, please, first?

Mr. Gair (25:25):

Pardon me?

Justice Gorsuch (25:25):

Could you spin that out?

Mr. Gair (25:27):

Yes, three data points. The first is that the government conceded below that the statements were literally true. The second is that, as I've said in the call with the bank, the statement that was made was, "I borrowed $110,000. I had a personal note for $110,000." Both true statements in the light of not a precise question or, indeed, even a question at all.

(25:57)
And then the call with the FDIC was with these two FDIC examiners and they made two comments that were very critical. The first is there was no question about how much he borrowed or how much he owed. Instead, they asked him about his personal note and he said, "They loaned me $110,000 on my personal note," which was true.

(26:26)
And both of the examiners and the witness from the call center for the bank, all testified that he didn't seem to know what it was he had borrowed. So I do think there's a good basis for the district court to make this decision in the first instance. And I think that this Court should decide the important legal issue, to make sure that prosecutors don't over-enforce this statute.

Justice Roberts (26:58):

Thank you. Thank you, Counsel. None of all this is pertinent on the home improvement loan statement, right?

Mr. Gair (27:03):

Correct.

Justice Roberts (27:04):

You agree that's completely false?

Mr. Gair (27:06):

That is a false statement.

Justice Roberts (27:07):

Okay, thank you. Justice Thomas, Justice Alito?

Justice Alito (27:10):

Well, your last comment is a fair one, but doesn't it go to a different question? It doesn't go to the question whether the statement was false in context.

(27:18)
It goes to whether he knew that it was false. It's a mens rea question. It's not a question of the actus reus, which is the utterance of a false statement.

Mr. Gair (27:29):

I agree with you that it goes to mens rea, but if we were to take the perspective of my friends to think that the perception of the listener mattered, that evidence would bear on this question. We don't agree that perception matters.

(27:46)
In fact, the government does not cite a single case from this Court, suggesting that the question of truth or falsity depends on the perception of the listener. As a matter of fact, the very concept of misleading is from the perspective of the listener, an objective listener, and Congress knows how to make that relevant.

Justice Alito (28:09):

Well, I'm totally confused by your argument, because unless you're arguing literal falsity, then falsity and context does depend on how people would understand the statement. It does concern the perception of listeners.

Mr. Gair (28:25):

I don't think so, Your Honor. I think that the falsity is an objective concept.

(28:33)
If I say that the sun rises in the West, that's false, and it doesn't matter whether it misleads you or not.

Justice Alito (28:39):

It may not concern the perception of the particular person to whom the statement is directed, but it does concern the perception of some kind of listener.

(28:54)
Otherwise, I don't understand the concept of falsity in context.

Mr. Gair (28:57):

Well, if I make a statement and there's no listener at all, it is still capable of being true or false.

(29:03)
And my point is that Congress over and over tells us when it wishes the perception of the listener to count, by using a term that explicitly refers to the perception of the listener.

Justice Roberts (29:20):

Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Kavanaugh?

Justice Gorsuch (29:25):

Just your client's already served the sentence, correct?

Mr. Gair (29:31):

Yes, he has, Your Honor.

Justice Gorsuch (29:31):

The prison time's already been served, so that's over. And what's still potentially at stake is restitution, is that?

Mr. Gair (29:38):

No, the restitution was resolved by the Seventh Circuit and it's been paid, and that's not an issue before this Court.

Justice Gorsuch (29:50):

Okay. So it's just the… Okay, thank you.

Justice Roberts (29:52):

Justice Barrett?

Justice Barrett (29:53):

Just want to take one more crack at along the lines of Justice Alito, those questions that he was asking you.

(29:59)
So am I right, and I take this from your reply that you've backed off this idea that it should be literal falsity?

Mr. Gair (30:09):

I think that the right way to say it is falsity in context of the question.

Justice Barrett (30:13):

Okay. So we're not talking about literal falsity, because you talked a lot about that in your opening brief. Okay. So we're not talking about literal falsity, we're talking about falsity in context.

(30:22)
You suggested both in your briefs and then I think even more clearly today, that the only context that matters when we're looking at cues is the question to whom, to which the defendant was responding. Is that your position?

Mr. Gair (30:34):

Not quite Judge, Your Honor. I'm sorry.

Justice Barrett (30:38):

It's okay.

Mr. Gair (30:38):

Trial lawyer. Justice Barrett, the context is the question that's asked, the statement that's made and the objective facts. So if the statement is very specific, if Mr. Thompson has said, "I only borrowed $110,000 and not a penny more."

(30:59)
And that was essentially the charge, then that would be a false statement. So you have to look to the question, the answer and the objective facts.

Justice Barrett (31:07):

Okay. So it's not just the question, it can be surrounding circumstances, as well as the question?

Mr. Gair (31:13):

I would say the objective fact of what he actually borrowed.

Justice Barrett (31:19):

Right, right, right, right.

Mr. Gair (31:19):

Yeah.

Justice Barrett (31:20):

Right. I understand that. But I'm just saying, when we're trying to figure out what a statement communicates, I guess, I guess I agree with Justice Alito about how communication works. If we're asking what a statement communicated and Williams tells us, there has to be some sort of statement. There's an assertion.

(31:38)
If you ask what that statement communicated, you have to have some basic understanding of how people use English. That's how the jury is going to decide would a reasonable person have found the statement to be false. So I agree you don't look at any kind of idiosyncratic understanding maybe of the person on the other side of the table.

(31:54)
But you do have to have some kind of understanding of how normal people would understand this in the context of the situation. Correct?

Mr. Gair (32:02):

Justice Barrett, I disagree with that and so did this Court in the Bronston case. In the Bronston case, it was absolutely clear what the questioner was driving at.

(32:13)
He wanted to know if the person had had Swiss Bank accounts. And the answerer said, "Well, my company did," and it wasn't pursued, and so the situation is very analogous.

(32:29)
If Bronston's right, then we can't look at what the perception of the listener was. We have to look at only the context of the question, the answer and the objective facts.

Justice Roberts (32:42):

Justice Jackson?

Justice Jackson (32:43):

So I guess I don't understand how on remand the Seventh Circuit could make the kinds of determinations that you said that they could make in response to Justice Gorsuch.

(32:54)
And the reason is because we had a trial in this case, we had a trial in which presumably

Justice Jackson (33:00):

… those very same arguments about what the statement meant to your client, what the bank examiner said, et cetera, et cetera, where evidence that was presented to a jury that was then instructed that they were supposed to make a determination about whether his statement was false, right?

Mr. Gair (33:20):

That's correct, your Honor.

Justice Jackson (33:21):

Okay. So why isn't the Seventh Circuit's only potential response on remand to determine whether any reasonable jury given that set of circumstances and evidence could have reached the result it reached? I don't think the Seventh Circuit could just pretend as though the jury didn't make a determination in this case and answer the question, does it think there was a false statement here. Right?

Mr. Gair (33:49):

That's right. I think that it's very likely that the Seventh Circuit would remand to the district court that heard the evidence and there is a very exacting standard as Justice Jackson as you know for a motion for judgment of acquittal-

Justice Jackson (34:05):

So help us to understand whether all of that is really not necessary because it's pretty clear that a reasonable jury could have made this determination. What is your best argument as to why, for example, and I'll just give you the analogy from the government, the analogy about the kid in the cookie jar. That the mom says, "How many cookies did you eat?" Or. "Did you eat cookies?" Or whatever the question is. And the kid actually ate, and I'm now making this up, 10 cookies and he responds, "I ate three." Why is that not a false statement?

Mr. Gair (34:44):

The answer to your hypotheticals is actually twofold. If the mom had said, "Did you eat all the cookies?" Or, "How many cookies did you eat?" And the child says, I ate three cookies when she ate 10, that's a false statement. But if the mom says, "Did you eat any cookies?" And the child says three, that's not an understatement in response to a specific numerical inquiry.

Justice Jackson (35:10):

All right, so here's the question here. The question, I guess, in response to that answer is, why wouldn't it be reasonable for a jury to interpret the submission of the invoice to be the kind of specific question that would require him to provide an answer? We don't have a particular question. We have his interpretation of the question and then answering it in a certain way, which you say doesn't make it false, but in the context of what a reasonable jury could have determined, I don't understand what your argument is to why a jury couldn't have interpreted what happened here to be calling for a specific response to the question, how much do you owe?

Mr. Gair (35:58):

Well, I think it's difficult to conceive of an assertion in an invoice as being a specific numerical-

Justice Jackson (36:07):

Difficult, but impossible? The question is, could a reasonable jury have interpreted it that way?

Mr. Gair (36:12):

I don't think so, Justice Jackson. And the reason is, among others, that there wasn't a question posed at all. The witnesses testified, or the evidence showed, that he was talking about his personal note, not the total amount that he owed. And the government conceded that what he said was, and I quote, "Literally true, but not the whole story."

Justice Jackson (36:38):

All right. Thank you.

Chief Justice Roberts (36:40):

Thank you counsel. Miss Flynn?

Miss Flynn (36:53):

Mr. Chief Justice, and may it please the court, Section 10 (14) prohibits any false statement, and like any other collection of words, a statement is false if it conveys an untrue message to the listener in context, even if the precise words used considered in a vacuum could possibly carry another meaning. So here, when in response to receiving an invoice telling Petitioner that he owed the FDIC $269,000, Petitioner then told the FDIC's agents that he was shocked by the letter, had no idea where the 269 number comes from and had borrowed $110,000. He made a false statement. Because he clearly conveyed the message that he did not owe the higher amount. And 12 members of the jury in this case who were not given a specialized definition of what false means, and therefore must have applied the concept as ordinarily understood, agreed.

(37:44)
Indeed, on page seven of his reply brief, Petitioner himself agrees that context obviously matters in determining whether a statement is false. I understood my friend to reiterate that position again today. So now it appears we're just debating what context the jury may consider as a matter of law. And to the extent Petitioner is arguing that you can only take account of the immediately preceding question, we urge the court to reject any such rule.

(38:08)
The jury should assess a speaker's meaning the same way the original listener would have in light of other parts of the conversation and other circumstances that naturally bear on meaning. Our position in this case is not that false encompasses anything that might be characterized as misleading or any failure to disclose pertinent information. It is that a statement is untrue if it states only a portion of the truth on the subject it addresses in a context where the statement would be taken as both accurate and complete. If, like Petitioner, the Speaker knowingly conveys that untrue message and does it with a specific intent to influence the FDIC to not fully collect on his debt, that violates the statute. I welcome the court's questions.

Justice Thomas (38:49):

So it doesn't really matter in this case whether there is a difference between false and misleading?

Miss Flynn (38:56):

Our position in this case that is that Petitioner's statements were false. That's how the jury was instructed. Our position is just that you assess the falsity of something, the inaccuracy of it, by looking to context and whether a false message was imparted. There's been a lot of talk though today about what kind of rule the Seventh Circuit applied in this case and I think the crux of the Seventh Circuit's analysis completely aligns with what I just said. I think you can see this in particular at pages 10a and 13a of the Petition Appendix. On 10a the court said, "Even if he never used the precise words, the implication of Petitioner statements was that he owed Washington Federal no more than $110,000, something that was untrue." And then on 13a, the court talks about the unmistakable impression left by his statements and how the jury found in its verdicts that he conveyed the message that he falsely stated that he only owed $110,000 and any higher amount was incorrect.

Chief Justice Roberts (39:55):

But in general, do you think there's any difference between the statutes that say false statement and the statutes that say false and misleading? Because it sounds to me that you would argue that when it says false that includes misleading statements in context. So is there any difference?

Miss Flynn (40:14):

We are not taking the position that the word misleading does no work in statutes in which it appears. We think there is some overlap between these concepts, as I understood my friend to agree. But when we say something has to be false in context, we mean the statement itself has to state a false message … has convey a false meaning directly, not lead the listener down a path perhaps to a foreseeable conclusion that additional information might have obviated. But here when Petitioner says, I borrowed $110,000 in response to what was essentially a question from the FDIC saying, do you owe $269,000? That is directly conveying through his statement that he only owed that amount.

Justice Sotomayor (41:01):

But isn't what you said-

Chief Justice Roberts (41:05):

I was going to say that's tough to parse, it seems to me in a lot of cases. I'm not making these up, I think these are in the case, but a police officer pulls a person over, thinks he's drunk, says, "Have you been drinking?" And the person says, "I've had one cocktail." When in fact he had one cocktail and four glasses of wine. Is that treated differently under the false statute that says just false and the statute that says false and misleading? I can see that being misleading, but I'm not sure it would qualify as false under the literal meaning of the word.

Miss Flynn (41:39):

I don't think those would be treated differently under those two statutes. I believe that is a false statement because a reasonable juror could find in context so that when officer pulls somebody over and asks, "Have you been drinking?" They're asking for a complete account of how much you've been drinking. And when the person says, "I had just one cocktail." That implies-

Chief Justice Roberts (41:56):

I didn't say just.

Miss Flynn (41:57):

Oh, I'm sorry.

Chief Justice Roberts (42:02):

I didn't say just. In my hypothetical it's, "I had a cocktail."

Miss Flynn (42:02):

I'm sorry I was repeating from the brief.

Chief Justice Roberts (42:03):

Or, "I had one cocktail."

Miss Flynn (42:04):

Right. I think in context, a reasonable juror could find that the officer was asking for a complete account of how much the person had had to drink given that the officer was clearly trying to determine whether or not they were inebriated and could not drive. And that's the kind of surrounding circumstance that we think is relevant here. And I mean that is what this case comes down to is whether-

Justice Kavanaugh (42:26):

Miss Flynn, we didn't take this case to decide whether reasonable juror could find that the defendant here in context made a false statement. As important as this case is, that's not why we took it. We took it to resolve whether the statute allows the government to pursue a theory of misleading rather than falsity. Right?

Miss Flynn (42:51):

Well, you took this case where the facts presented are a numerical understatement.

Justice Kavanaugh (42:55):

We didn't take this case to resolve it on the facts. We took it to resolve a legal question. And the legal question is whether as a seven Circuit held this statute permits a conviction for not just false statements but misleading ones and that is a gloss that the Seventh Circuit's put on the statute. Are you here to defend that or are you simply saying that even under a correct understanding of the statute, we would win and you guys should go ahead and decide what a no reasonable juror could have concluded otherwise?

Miss Flynn (43:26):

It's the latter, your Honor.

Justice Kavanaugh (43:27):

Really?

Miss Flynn (43:27):

But I would add the qualification that here, the only legal-

Justice Kavanaugh (43:30):

Really? You're asking us to apply to the statute to a fact-bound error correction question. That's a little strange. I thought we took the case to decide whether the Seventh Circuit and Fried was correct that this statute permits convictions from misleading. Maybe we hold it does, in which case we affirm, maybe we hold a doesn't, in which case we vacate and remand for this fact-bound question to be resolved by a lower court. In the first instance. I mean, we're a court of review, not first view, right?

Miss Flynn (43:59):

Well, as the case has narrowed during the briefing, the only legal dispute I take to be between my friend and us is what context matters in assessing falsity and context by-

Justice Kavanaugh (44:10):

Okay. But you're not denying that falsity is required by this?

Miss Flynn (44:14):

We are not denying that. No. We have not denied that.

Justice Kavanaugh (44:17):

I take it now maybe you're also agreeing that misleading is not enough.

Miss Flynn (44:22):

So it depends on what you mean. We believe that-

Justice Kavanaugh (44:25):

Falsity in context is what's required by the statute and more is not permitted, so if it's misleading in another sense that's not good enough.

Miss Flynn (44:33):

If it is misleading in the sense that a person makes a numerical understatement and under reports, if you're using the word misleading to describe that, we do think that is sufficient. But we do think the better way to understand this concept is falsity in context.

Justice Sotomayor (44:46):

No. But Miss Flynn-

Miss Flynn (44:47):

But the reason-

Justice Kavanaugh (44:48):

So if we hold falsity in context as the standard, why wouldn't we vacate and remand because that's not what the Seventh Circuit held.

Miss Flynn (44:56):

Well, I pointed the court to two instances in which I do believe the Seventh Circuit reasoned that in context.

Justice Kavanaugh (45:01):

Yeah. But it said Fried is our standard and Fried is either falsity or misleading in this dichotomy it created and it proceeded to say these statements were misleading.

Miss Flynn (45:11):

The court also quoted the portions of Fried where the Seventh Circuit said that you look at the natural import of what the speaker is trying to convey.

Justice Gorsuch (45:19):

Go ahead please.

Justice Kavanaugh (45:20):

It said on 9a, in the end, we need not decide whether Thompson's statements were literally true because his argument runs headfirst into our precedent. We already decided in Fried that section 10 (14) criminalizes misleading representations. Do you agree with that?

Miss Flynn (45:38):

If you read that sentence to mean all misleading representations, no, we do not agree with that.

Justice Kavanaugh (45:42):

Okay, and that's the question I thought … I agree with Justice Gorsuch. We say it all the time that we don't …

Justice Sotomayor (45:51):

And why don't you agree with that? What misleading statements do you think they had in mind that you would walk away from?

Miss Flynn (46:00):

Well, it's hard to know because of course the Seventh Circuit was thinking about the facts of this case when it used the word misleading. And that's why I'm trying to be careful.

Justice Sotomayor (46:06):

I'll tell you the statements that I think you should walk away from and you tell me if you agree. There are a whole world of … I wish I had some good examples at hand, but we've seen these kinds of cases, these kinds of statements in many cases over the years, and talked about them, where somebody says something and it's not just literally true, it is true in context. The reader is hearing the statement and exactly the way that … but other statements are not made that would cast a different light on a situation. And so the person says, "Oh, I was misled because I know one thing that was relevant to the situation, but you didn't tell me some other thing that was relevant to the situation and relevant to my decision-making."

(46:55)
And there are all kinds of cases in which we say, in some statutes that omission makes you liable, but in other statutes it doesn't. So in this statute it seems pretty clear to me that it doesn't.

Miss Flynn (47:08):

Yes, I would agree with that.

Justice Sotomayor (47:12):

I guess when I read the Seventh Circuit, it's at least possible that the Seventh Circuit has that wrong. That the Seventh Circuit is sort of treating falsity and misleadingness as all of the peace and not making this distinction between when a statement in context is false and when that statement is true, but nonetheless misleading because there's other stuff that's been left out.

Miss Flynn (47:40):

And I would say that even if you thought the Seventh Circuit was confused on that particular point, we know how they would analyze this case under the correct legal rule because the court said that even if he never used the precise, the implication of his statement in looking at context-

Justice Sotomayor (47:54):

I would think we could do two things at one time. We can both decide the legal question that if we think that the Seventh Circuit got it wrong, and we can also say something about this case and it might actually be useful to other courts out there to say something about this case, so they know what we're talking about and what we're not talking about.

Miss Flynn (48:12):

Exactly. And I would add the further point that because right now we're just debating, I think, at least between my friend and I, what context counts, I would think this court should answer that question as well and say it's not just the preceding question, it's the things … The purpose of the conversation, what was discussed before, the kinds of things that the listener would've taken into account too. Because I think if you just say misleading statements don't count, it's falsity in context, full stop, and then have this set of facts and send it back down, that could create a good deal of confusion.

Justice Kavanaugh (48:43):

Don't you think if we [inaudible 00:48:45] on that question, we get amicus briefs discussing that important question, because that is going to have an effect on lots of statutes. You're asking us to decide something much broader than the straightforward question as Justice Gorsuch said, that was in the question presented and that was in the cert petition … and I think you've said you don't really agree with what the Seventh Circuit said. Well, and then you said, it's easy to know what the Seventh Circuit would've done. Well, if that's true on remand, that's what they're going to do.

Miss Flynn (49:19):

And well, we argued at the cert stage as well that false means false in context. And so I believe that to be fully within the case this entire time.

Justice Gorsuch (49:30):

Miss Flynn, the question presented is whether the statute prohibits making a statement that is misleading but not false. That's the QP. Not what qualifies as falsity, how much context, who shot John. None of that's in the QP. And I think Justice Kavanaugh has a very good point, that if we were really going to tackle what is falsity, we might want to consult a few philosophers while we're at it, but we certainly would've had a different set of amici and a different set of briefing than we had in this case if we're going to tackle that question.

Miss Flynn (50:06):

Respectfully, your Honor, I don't think that's correct. I think the concept of falsity is one that we fully trust jurors as laypeople to assess and make determinations about and engage in line drawing. I think it's very similar to material-

Justice Gorsuch (50:18):

Of course, but you're asking us to say as a matter of law, this is always in and that is always out for determining falsity. And that's just not in the QP, counsel. And it has ripple effects not just in 10 (14), but throughout all of Title 18 because there are literally … well, not literally. There are a lot of false statement statutes under which you can proceed and many of them do distinguish between falsity and misleading statements.

Chief Justice Roberts (50:48):

The question presented … Are you finished? I'm sorry.

Justice Gorsuch (50:54):

Well, I hope Ms. Flynn would have a response.

Chief Justice Roberts (50:56):

Oh, sure.

Miss Flynn (50:56):

Well, I'm not sure. One observation I would make about the question presented is that it asks whether you can satisfy the requirement of a false statement under 10 (14) by making a statement that is not false. And I mean of course we don't agree with that. And so in that sense, the question presented answers itself. The issue in this case has always been what does false mean? And our argument is falsity in context. And I do think the legal question answering it is … this court all the time talks about-

Justice Gorsuch (51:28):

Where is that in the QP, Miss Flynn? I'm sorry. But you just said in the QP is a question of what makes a statement false.

Miss Flynn (51:35):

Yes.

Justice Gorsuch (51:35):

I don't see that. I see whether 10 (14) also prohibits a statement that is misleading but not false.

Justice Jackson (51:42):

Right, but it's-

Justice Gorsuch (51:43):

That's the QP.

Justice Jackson (51:45):

Miss Flynn, isn't the problem that in the government's view, the question presented as Justice Gorsuch is reading it is actually not implicated on these facts? Meaning, you don't see that what happened here is misleading in the sense that it was literally true, but led someone down a wrong path. You see this as false, that's why you keep arguing it that way. And so even though we take questions presented to answer legal questions, we do so ordinarily in cases in which the facts actually implicate that question. So I think the confusion is arising because the government seems here and in your briefs to be making arguments about the falsity of this particular set of circumstances, the context that you keep talking about, and that you're not really addressing a situation in which you believe there was a misleading but not false scenario.

Miss Flynn (52:43):

Yes.

Justice Jackson (52:45):

So to answer the question, when and under what circumstances does this statue cover misleading but not false situations on these set of facts is like a mismatch because you say that's not happening here. Right?

Miss Flynn (52:59):

Yes, I would agree. And I would also just reiterate that here, it's not like there was a legal error or some kind of legal confusion that infected the jury's verdict because here the jury was just told they had to find that a Petitioner knowingly made a false statement.

Justice Jackson (53:12):

So this takes us back to Justice Alito's original point. It seems like the Seventh Circuit, and perhaps Petitioner in his arguing, injected this notion of you should be looking at this as a misleading but not false situation. And that kind of got carried away and taken over when really the jury was instructed on falsity. You say the facts establish falsity. I guess the one thing against you is your colleague on the other side said the government at some point conceded that this was a misleading but not false case. So can you explain why that happened and what we should take from that?

Miss Flynn (53:49):

Sure. So my friend points to a moment in one of the hearings about this issue where government counsel was sort of paraphrasing the kind of argument that the petitioner was making about literal falsity. But elsewhere in that same hearing, the counsel said that Petitioner statements were, "Not true." I believe three times. They maintain that position afterwards. Of course we maintain that before the Seventh Circuit as well. So I do not believe it's fair to say that we have conceded that his statements were literally true.

Justice Kagan (54:19):

Counsel, assume for the sake of argument that we don't accept your position, that misleading and false are synonymous. That there are some things borrowing the phrase of the other side, some things that are true but misleading. Justice, if you say a packet of toxic mushrooms is 100% natural, toxic mushrooms are 100% toxic. But it may be misleading if you're selling it, because people may believe that it's safe, that you can actually eat it. So that's misleading but not false. So assume that there's a difference between the two.

(55:11)
And we say this is a Bronston case. It has to be a false statement in the sense of Bronston. What is the difference, or is there, in what you're saying about what falsity means in this statute and what we said it meant in Bronston.

Miss Flynn (55:32):

Yes.

Justice Kagan (55:35):

The other side argues, and there's many who have described Bronston as saying you need literal falsity or literal truth. So how do you distinguish what you are arguing or how do you get what you are arguing from what we said in Bronston? If we answer the question presented, that you can only prosecute false statements. All right? Staying within Bronston, how do you argue this case?

Miss Flynn (56:08):

So we disagree that the rule this court announced for the perjury statute in Bronston applies to the language of 10 (14).

Justice Kagan (56:17):

Assume we disagree. Because there, the perjury was for making a false statement. Here, if you make a false statement, you're guilty with some other knowingly, et cetera, et cetera. Other elements. So just go back to the essence of my question. If we apply Bronston, do you win? Or how do you win and how does your theory fit into Bronston?

Miss Flynn (56:47):

I do just want to be very clear that I do not think this court should apply the perjury session.

Justice Kagan (56:51):

I understand that. I've said it three times. Assume.

Miss Flynn (56:54):

Okay. And then I would point this court to the footnote in Bronston where the court said, of course understating a numerical amount in response to a question would qualify as literally false even under the rule that we're announcing today. And we don't think you need to have … of course Bronston was talking about questions and answers during testimony, but we think that here, for instance, the invoice essentially served the same contextual purpose as a direct question about how much a petitioner owed. But the principle is the same. The court was saying, of course, if you understated part of the whole-

Justice Kagan (57:32):

Now we go to Justice Gorsuch's question. When we describe context, the other side says what's the question asked directly or implicitly? But I think he's not going to say implicitly. What's the question you ask? What is the answer you give? And objectively do the facts support that answer? How would you describe what we're supposed to do?

Miss Flynn (58:02):

I think Petitioner's limits to just the precise question asked is very artificial. I would draw an analogy to how this court looks at context with statutes for instance. This court does not draw hard and fast rules saying we only look at the proceeding subsection-

Justice Kagan (58:17):

But that's what we did in Bronston. We looked at the question asked.

Miss Flynn (58:20):

In the context of cross-examination where the questioner is in full control of the witness's presentation by asking the questions and against a background principle of Anglo-American law that we want for a jury to be-

Justice Kagan (58:32):

If we disagree with you, is that the lesson you take from Bronston? That it's the question asked and whether the answer is objectively right or not?

Miss Flynn (58:44):

In the context of perjury? Yes, I understand that to be the case, though of course I think you have to look at the question-

Justice Kagan (58:49):

But you're arguing we should apply something different in other contexts?

Miss Flynn (58:53):

Than perjury, yes, I would.

Justice Kagan (58:54):

All right, thank you.

Chief Justice Roberts (58:55):

Counsel, we've been talking about things that are technically true but misleading. Does it work the other way? Let's say statements that are technically false but not misleading. If someone's trying to sell you a horse and says, "This is the fastest horse I've ever seen." And in fact it's not. He's seen a faster horse. But I don't think purchasers would necessarily view that as misleading. They would view that as sort of normal sales talk. So can things be technically true, technically false, but not misleading?

Miss Flynn (59:32):

I don't think in your hypothetical, your Honor, that that would be considered false, because it's in a context where it's a qualitative opinion, for instance, and so the listener takes that with a grain of salt.

Chief Justice Roberts (59:42):

No. No. It's either, one horse, they had a race and the horse lost.

Miss Flynn (59:44):

Oh, I'm sorry. Yeah. So I think in the context of what is essentially sort of puffery, the common law, the reasonable listener sees that differently and there are common law doctrines that kind of give effect to that. And so no, I don't think that would be false, in your hypothetical.

Justice Gorsuch (59:59):

Ms. Flynn, just to back up, about the QP.

Miss Flynn (01:00:05):

Yes.

Justice Gorsuch (01:00:05):

At least in your brief and opposition, the government did argue that the statute before is criminalizes misleading representations and is not limited to false statements. So it did make the misleading versus false argument there. And I think that was the government's position in defending Fried in the Seventh Circuit, at least initially. And now if I understand it, I just want to make sure I understand it. You're pivoting and saying, "Okay, Fried's wrong. Misleading doesn't count, but falsity is more capacious than literal falsity, more capacious than Bronston. And we want you to use this court as a vehicle, this case as a vehicle for expanding what counts as false beyond our precedent."

(01:00:54)
And even though no one's litigated that precise question below, it's always been about misleading versus falsity. And even though that in this case it probably won't make a wit of difference given you've got such a good standard available to you on remand and the likelihood of overturning the jury verdict is very low. Is that a fair summary of how the ball has bounced in this case?

Miss Flynn (01:01:18):

I would respectfully push back on a few aspects of that. We took the position in our opposition brief that the statements have to be false.

Justice Gorsuch (01:01:26):

No. No. Page six says section 10 (14) criminalizes misleading misrepresentations and is not limited to literally false statements.

Miss Flynn (01:01:38):

I'm sorry, can you give me that page one more time, your Honor? I apologize.

Justice Gorsuch (01:01:41):

Page six. I don't mean to occupy-

Miss Flynn (01:01:56):

I'm looking Petitioners claim that section 10 (14) does not prohibit merely misleading representations as beside the point. We argued before the Seventh Circuit and in our opposition brief that the word false encompasses falsity by context. We rejected what we understood to be Petitioner's arguments that you have to assess falsity by virtue of looking at the precise words used in the four corners of the statement alone. I now understand Petitioner to have walked away from that rule. And to resolve the only legal disagreement in this case, you have to decide what context counts. We know that the Seventh Circuit found that the unmistakable impression left by Petitioner's statements in context was that he borrowed only $110,000 and no more.

Justice Barrett (01:02:50):

Counsel, do you agree with the First Circuit's pattern jury instruction? It defines it, it says a statement is false if untrue when made. What if we said, we disagree, the Seventh Circuit stated this too broadly, misleading statements don't count, just false statements, and we offered that definition of the standard. Would the government agree with that?

Miss Flynn (01:03:10):

Yes, we would agree with that statement. We agree that false means untrue.

Justice Barrett (01:03:13):

And then just not say anything else?

Miss Flynn (01:03:15):

Yes.

Justice Barrett (01:03:15):

You don't need to say anything else about what counts as falsity, this falsity in context, that sort of thing? We don't use the words literal falsity and then we just send it back to the Seventh Circuit?

Miss Flynn (01:03:26):

Yes, we agree with that. And that's consistent with the pattern jury instructions in every circuit that has a pattern instruction for 10 (14). The only ones we've seen is that kind of language that says false means untrue when made. There's no attempt … they don't give a specialized definition for the jury trying to parse the issues we've talked about today. Thanks.

Justice Alito (01:03:47):

There's been a lot of talk about the question presented. The question presented refers to statements that are misleading but not false. I don't see how we can answer the question presented unless we understand what is meant by a statement that's misleading and a statement that is not false. There's a clear distinction if false means literal falsity, but Petitioner does not make that argument.

(01:04:22)
And therefore, in order to answer the question if that's how we approach this, we would have to understand what the Seventh Circuit means by a statement that is misleading. And it's entirely possible that what they meant was a statement that is false in context. It's possible that they might have a broader understanding of what misleading means. But to be honest, I don't really understand the distinction between statements that are misleading and statements that are false.

(01:04:54)
I will concede there may be some distinction. The connotation is different. I asked Petitioner's counsel what he thinks is the difference, and he gave me the example of his website, which that's not exactly a rule. Maybe he'll take another shot at it and reply, but in rebuttal. But can you tell me what do you think is the difference, if any, between a statement that is misleading and a statement that is false in context?

Miss Flynn (01:05:27):

I think a statement that is misleading could encompass a broader category of things than just things that are false in context.

Justice Alito (01:05:34):

And what would that broader category be? I know that's the connotation of the term, but if you want to nail it down, if we're dealing with a legal concept, it may be prudent. Probably it is prudent. Just to disregard the whole idea of a misleading statement here. The statute says false, it has to be false. Petitioner concedes. It can be false in context. It doesn't have to be literally

Samuel Alito (01:06:00):

… literally false, we could leave it at that. But if we were to go further in answering the question, what would we say about statements that are misleading but not false in context?

Miss Flynn (01:06:11):

So, one of the ways that we've described what we think that falsity encompasses… That falsity is not encompassed, I'm sorry, that misleading might is a failure to include additional pertinent information not on the same specific subject addressed by the statement. So, one example might be if I am a tennis player and I say I won the Championship, that I leave out that it was a forfeited match because my opponent failed a drug test. My statement, when you know that additional information, that doesn't render what I said false, it is still accurate. It's just that I did not take care to obviate what was probably a foreseeable inference that you would've thought I won a contested match. And it's the difference between the statement itself directly saying something inaccurate in context and leading the listener down a path.

Samuel Alito (01:07:06):

And do we know what the Seventh Circuit means by this phrase when they use it in this term, when they use it in their opinions?

Miss Flynn (01:07:07):

I can't say we know for sure, but I will say that the court was of course thinking about the facts before it, which was this numerical understatement fact pattern. And we can look to the parts of the opinion where the court said that the unmistakable impression left by Petitioner's words was that he only borrowed this amount. I'm sorry, Your Honor.

John Roberts (01:07:26):

Thank you, Counsel. Justice Thomas, anything? Justice Alito? Justice Sotomayor?

Sonia Sotomayor (01:07:32):

Would this be false under the example you gave, would it be false under Bronston?

Miss Flynn (01:07:38):

The tennis player example?

Sonia Sotomayor (01:07:39):

Yes.

Miss Flynn (01:07:40):

No.

Sonia Sotomayor (01:07:41):

Why not? If I asked you, "Have you won a championship?"

Miss Flynn (01:07:45):

If you asked me, "How you won a championship?"

Sonia Sotomayor (01:07:47):

Not how.

Miss Flynn (01:07:48):

Sorry, have, yes.

Sonia Sotomayor (01:07:48):

If I asked you, "Have you won a championship?" And you answered the way you did, and that's why you got whatever job you were applying for, have you made a false statement or a misleading statement?

Miss Flynn (01:08:04):

I don't believe you made a false statement under Bronston or under the rule we're advocating for today.

Sonia Sotomayor (01:08:08):

Okay.

John Roberts (01:08:10):

Justice Kagan?

Justice Kagan (01:08:11):

Doctor's trying to convince a patient to have a particular surgery and he says, "I've done 100 of these surgeries." Turns out that 99 of the patients have died. "100 of these surgeries." True statement, correct?

Miss Flynn (01:08:29):

Yeah. In the context I'm aware of, yes.

Justice Kagan (01:08:32):

But he doesn't say, "99 people have died." He's now misled the patient, correct?

Miss Flynn (01:08:36):

Correct.

Justice Kagan (01:08:37):

But he hasn't said anything that's false.

Miss Flynn (01:08:40):

Correct.

Justice Kagan (01:08:41):

So, that's the kind of thing where there really is a gap between a false statement and the misleading statement, right?

Miss Flynn (01:08:47):

Yes.

Justice Kagan (01:08:48):

And would it be helpful, in your view, to say something like that? There really is a difference. In some, there might be overlap, but there really is a difference, some things that are super misleading but that are not false. Your example of the tennis player, my example of the surgeon. Why not just say that, and instruct the Seventh Circuit, and anybody else who may not have a correct understanding of this, that there is this gap?

Miss Flynn (01:09:17):

Yeah, I would not resist this court explaining that, I just am only resisting the possibility that you could say, "This statute does not criminalize misleading representations full stop" without explaining that falsity by context counts, what that means, and also leaving open the possibility that the facts here, where the Petitioner, in response to a statement saying he owed a certain amount, said, "I'm shocked by that, and I owed this different amount." That a juror could not find, as a matter of law, that that is false.

John Roberts (01:09:50):

Justice Gorsuch?

Neil Gorsuch (01:09:52):

No.

John Roberts (01:09:53):

Justice Kavanaugh? Justice Barrett?

Amy Coney Barrett (01:09:55):

So sorry, Ms. Flynn, just to put a pin in it at the end, what do you want this court to hold? So, you told me that you would be happy with the First Circuit pattern jury instruction, which you understand to be the standard one. And Justice Kagan asked you would it be helpful to go on and say a little bit more to give guidance on what the distinction between false and misleading is? What would the holding, the rule line in an opinion be, that would be ideal from your perspective?

Miss Flynn (01:10:24):

It would be that false means untrue or inaccurate, but that an assessment of whether a statement is untrue or inaccurate is the message being sent in context, and jurors, as a matter of law, can take account of context, including the purpose of the conversation, other parts of it, and the meaning of the words used. And to affirm on the record in this case, where the Seventh Circuit looked at this and found that a reasonable jury could find, in context, that what Petitioner said was untrue and matched the charged false statements that the jury was instructed on.

John Roberts (01:11:00):

Justice Jackson?

Justice Jackson (01:11:03):

Going to Justice Kagan's point, there is a difference between false and misleading, but I take it that the government's argument is that the facts here don't really implicate that difference. So, in other words, it would be as if, in Justice Kagan's hypothetical, the question to the doctor was, "How many times have you done this surgery?" And, for whatever reason, the doctor said, "10." When really, he had done 100. That wouldn't be misleading, that would be false, in the government's view. Correct?

Miss Flynn (01:11:33):

Correct.

Justice Jackson (01:11:34):

All right. And so just one other point about what the government's position has always been on this. When you said, in the colloquy with Justice Gorsuch about what the government's position had been in the brief of opposition, could it be that you were referring to the first paragraph of the argument section, where you say, on page five, that Petitioner renews his claim that he did not make any false statement within the meaning of 114, but his statements were false by any measure, and his contrary argument would not entitle him to relief in any circuit. No further review is warranted. And so your initial argument is that this is a false statement, and the part that Justice Gorsuch was reading was B, on page six, where you say even if Petitioner had only made a misleading statement, he still would've violated. But the government's point throughout this is that this should be characterized as a false statement. Is that right?

Miss Flynn (01:12:31):

Yes, that's correct. And if I could clarify with my back and forth with Justice Gorsuch, I understood our brief to take the position that we are understanding the word "false", and that includes contextual falsity, we have argued that Petitioner's statements were false, the jury was instructed that way. If we introduce confusion about whether or not a broader array of things that do not qualify as false but could be described as misleading counts, that is not the government's position, and I hope that I've clarified that today.

Justice Jackson (01:13:10):

Thank you.

John Roberts (01:13:10):

Thank you, Counsel. Mr. Gair, rebuttal?

Mr. Gair (01:13:17):

When we're looking at a statute, the most important thing is for us to look at the text of the statute. The government is committing the fundamental error of atextualism that this court condemned in Wells and many other cases, where it is trying to supply an additional term to the statute, a term that is used in many other statutes, when Congress means to get at the perception of the listener about a statement, and that is the term "misleading". Wells teaches us that you can't imply a new term into the statute because the court thinks it might be a good idea, or because close is good enough for government work. It's not.

(01:14:08)
Justice Thomas's opinion for the court in Rotkiske is another prime example of a statute where, in that case it was the Fair Debt Collection Practices Act, the question was whether the statute of limitations implied a discovery rule, and the Court's opinion there looked at statutes that had been passed after the Fair Debt Collection Practices Act that had a discovery rule, as well as statutes passed before, and found that the statutory context rebutted the atextualist argument that you should imply a discovery rule into the statute.

(01:14:55)
I think everyone, except possibly my friends with the government, recognize that there is a difference between false and misleading. And some of the court's questions to the government ask how do you draw that line? And my suggestion is the line is drawn by Congress, because when Congress means for the relevant context to include the perception of the listener, it says misleading. It doesn't say just false. And the court has offered a number of hypotheticals that clearly draw the line between misleading and false.

(01:15:35)
And this court's recent decision in the Macquarie case, dealing with Section 10(b)(5) could not be a clearer example. The court there, of course, was dealing with a pure omission, but it had a nice explication of rule 10(b)(5) and said the first section, the false statements part of 10(b)(5), deals with express falsehoods. The second section of 10(b)(5) deals with statements that say the truth but omit a material fact necessary to make the statement not misleading. Congress has done that in a hundred different places, but it didn't do it here. And so we should heed the text, and recognize that because Congress did not use the word misleading, it was not intending that the perception of the listener matters. As we all know, falsity is an objective question, and despite the fact that people of the younger generation may talk about, "I want to speak my truth", there is no such thing as "my truth". It's true, as an objective matter.

(01:16:52)
I do want to touch on a couple of things, other things that the government suggested. The Seventh Circuit did, and I'm very glad that my friend mentioned it, say that the implication of this was false, the impression created was false. But that begs the question, impression and implication go to the perception of the listener. The court never said it was false as an objective matter. Instead, it said that it was not deciding that question.

John Roberts (01:17:23):

Thank you, Counsel.

Mr. Gair (01:17:24):

Thank you.

John Roberts (01:17:24):

The case is submitted.

(01:17:24)
We'll hear argument next in Case 23-971, Waetzig v. Halliburton Energy Services. Mr. Levy?

Vincent Gregory Levy (01:18:39):

Mr. Chief Justice, and may it please the court: as every federal circuit to have considered the question held until the decision below, Rule 41 voluntary dismissals without prejudice may be reopened under Rule 60(b) because they are final proceedings or final judgments.

(01:18:56)
To start, a voluntary dismissal is a proceeding or a judgment. The phrase "judgment, order, or proceeding" in Rule 60(b) was taken in 1937 from Section 473 of California's Code of Civil Procedure. And, at the time, California's Supreme Court had interpreted Section 473 to cover all steps in litigation, and it had specifically applied Section 473 to voluntary dismissals. These authoritative California decisions were carried into Rule 60(b), and they are consistent with dictionary definitions of the terms "proceeding" and "judgment".

(01:19:33)
Next, a voluntary dismissal is also final. Some courts, after adoption of the rule, initially read it to constrain their authority to revise interlocutory matters, and the advisory committee thought this was wrong. So, it added the word "final" to confirm that Rule 60(b) comes into play only when a court lacks inherent authority to modify a matter as interlocutory, but a dismissal terminates a case, so it cannot be modified using the court's inherent power, and it is therefore final for Rule 60(b) purposes. And that conclusion, again, is confirmed by contemporaneous dictionary definitions.

(01:20:12)
Respondents mostly avoids these points. It leads by asking the court to affirm on the new theory that the district court lack jurisdiction to vacate an arbitration award after reopening the case. This objection is not covered by the question presented, and presents no obstacle to resolving it. And the argument will fail on remand, because it misreads Badgerow and Kokkonen, which are the two cases my friends rely upon. And when it comes to the question presented, Respondent offers no cogent response to the dictionary definitions, the California decisions, or the advisory notes. The court should reverse. I welcome the court's questions.

Clarence Thomas (01:20:51):

Didn't the Tenth Circuit also treat this as jurisdictional?

Vincent Gregory Levy (01:20:56):

The Tenth Circuit treated the issue of whether Rule 60(b), whether the case could be reopened as going to the jurisdiction of the court to vacate the award, and therefore there are two, effectively, threshold issues that could be resolved. And under Sinochem, of course, there's no sequencing to jurisdictional issues, which is, I think, the point that Justice Gorsuch made in the dissent that we cite in our briefs where, if there are two jurisdictional issues and the court grant… Or two issues that are threshold and go to a court's jurisdiction, and the court grants review to decide one of them, it should decide that question, and the other jurisdictional issues or issues going to jurisdiction remain for remand.

Clarence Thomas (01:21:42):

So, do you agree that it's jurisdictional, or is it simply an application of 60(b)?

Vincent Gregory Levy (01:21:48):

I do not agree that it's jurisdictional. I think it's about the application of Rule 60(b), and if relief is granted, then the case is reopened and there is jurisdiction. But the question that is itself presented I would characterize as a threshold issue, in the same way as in Sinochem forum non conveniens was a threshold issue which was not jurisdictional.

John Roberts (01:22:11):

Your friend suggests that the reason that you're going through this process after voluntarily dismissing the case, now trying to revive it, it's an ADEA claim that you've lost in arbitration, and it's a way to try to bring a collateral attack on the arbitration award. Is that what's going on?

Vincent Gregory Levy (01:22:30):

There was a motion to reopen the case and to vacate the award, and the case was then sent back to arbitration. So, the motion was a challenge to the arbitration award.

Justice Jackson (01:22:42):

But isn't it a separate motion? There's a motion to vacate, but there's also a motion to reopen, and the court would have to make two independent determinations regarding that, correct?

Vincent Gregory Levy (01:22:53):

The district court treated this as two issues, entered two orders. They are both attached to our petition. The first order chronologically was to reopen the case under Rule 60(b), and then later, having reopened the case, the court vacated the arbitration award.

Justice Jackson (01:23:08):

And here we're just concerned about the propriety of the first issue?

Vincent Gregory Levy (01:23:14):

That's right.

John Roberts (01:23:15):

Your friend on the other side is concerned about a little more than that, and he says… What is the reason for what you're doing, if not to collaterally attack the arbitration award?

Vincent Gregory Levy (01:23:25):

I think that goes to the… I agree, the motion was filed and the reopening was done to vacate the award. Those go to two different… Those issues do not go to the question presented. They go to, number one, whether the court was right to grant relief under Rule 60(b). I note that that issue was not addressed by the court itself in the majority opinion, although the dissent would've affirmed the district court's grant of relief under Rule 60(b)(6). And so on remand, my friends can argue that the 60(b) ruling, the exercise of discretion by the district court should be vacated as an abuse of discretion. And then, of course, there will be this separate issue on remand, to the extent arguments have been preserved, as to whether the separate order vacating the award should be affirmed.

John Roberts (01:24:14):

Right, but I'm just trying to get a handle on why we're going through all this. And the arbitration award has been confirmed in court, right?

Vincent Gregory Levy (01:24:22):

It has not been confirmed.

John Roberts (01:24:23):

Okay, but there is a proceeding to do that, or are you challenging that independently?

Vincent Gregory Levy (01:24:29):

What happened is there was an arbitration award, then there was a motion filed by my client to reopen the case and vacate the award, and then that award was vacated, and the matter was appealed.

John Roberts (01:24:41):

So, your friend is wrong to suggest that the reason… The ADEA claim was resolved in the arbitration. Now, if it's going to be challenged, it should be challenged in that forum, no?

Vincent Gregory Levy (01:24:51):

There's a motion under… Arbitration awards would be subject to challenge under the FAA. And the court, the district court, here determined that those grounds were satisfied, and that the arbitration award should be vacated, and did vacate the award.

John Roberts (01:25:06):

Your dismissal was a voluntary dismissal, right? So, you could have challenged the arbitration award independently at that point, right? Why is it necessary for you to vacate your voluntary dismissal to restore that action, as opposed to bringing an independent action challenging the arbitration award?

Vincent Gregory Levy (01:25:28):

So, sequentially, my client filed an ADEA case. Halliburton argued that the case should be arbitrated, asked that the case be dismissed and sent to arbitration. My client withdrew the case at that point without prejudice, although it was after the limitation period had lapsed, and went to arbitration. The arbitration proceeded, an arbitration award was rendered, and my client then challenged the award by going back to court and saying we would like to reopen the case and have the arbitration vacated under Section 10 of the FAA.

(01:26:01)
At that point, the district court said that the case had been dismissed, and issued an order to show cause asking how it had jurisdiction. My client pointed to Rule 60(b)(1) and (6) as grounds to reopen the case, and that's the path that the district court took. It entered one order reopening the case, and then after that occurred, entered another order vacating the award. When the case went up on appeal, all those issues were presented.

John Roberts (01:26:32):

Your voluntary dismissal was without prejudice, right? Why do you have to reopen that? Can't you just bring another proceeding?

Vincent Gregory Levy (01:26:39):

Well, no, because of the limitation periods.

John Roberts (01:26:41):

So, this is a way of avoiding the statute of limitations?

Vincent Gregory Levy (01:26:47):

It's an application arguing that the application of the limitation periods to this case is inequitable, given the circumstances of the case, which is an argument that the district court accepted in granting relief under Rule 60(b)(6) and (b)(1) as well. But under (b)(6), that was the ground that the dissent would've affirmed. And so on remand that will be whatever arguments remain as to whether the reopening of the case under Rule 60(b)(6)-

John Roberts (01:27:15):

I'm sorry, just trying to get a handle on exactly what happened. If you had filed another ADEA challenge, that would've been barred by the statute of limitations.

Vincent Gregory Levy (01:27:25):

That's right.

John Roberts (01:27:26):

So, you're reopening your voluntary dismissal to avoid that consequence?

Vincent Gregory Levy (01:27:33):

A new case could not have been filed on the merits, because limitation period, and a new application under the FAA also could not have been filed because that has also a limitation period of 90 days. And so considering all these factors, the law and the other issues that are discussed by the district court, the district court reopened the case. And that is an issue that is A, not jurisdictional, B, was not addressed below, and C, could be considered on remand.

Sonia Sotomayor (01:27:58):

Counsel, I see two jurisdictional issues here. One, what's the district court's jurisdiction? What's the subject matter? What gives it subject matter jurisdiction to consider the 60(b) motion at all? And the second jurisdictional issue I see is what gives it subject matter jurisdiction to vacate an arbitrable award? So, they chose to go, the Tenth Circuit, on the 60(b). That's what we granted cert on. And so I'm assuming that you must think that the jurisdiction over the motion to reopen stems from the original ADEA case?

Vincent Gregory Levy (01:28:42):

That's right.

Sonia Sotomayor (01:28:43):

All right. So, that has been opened. What would've given the district court jurisdiction to vacate an arbitrable award? Because I don't think the jurisdiction that's granted by the federal statute, or the ADEA, is simply to order the parties to go to arbitration. So, what gives it subject matter jurisdiction to vacate the award?

Vincent Gregory Levy (01:29:15):

Once the case is reopened, it's a federal case, and first, it has jurisdiction because of that.

Sonia Sotomayor (01:29:22):

It has jurisdiction to reopen the ADEA case. But this is no longer an ADEA case. At least the motion to vacate is not related to anything that's happened in the rights and responsibilities between the two of you, with respect to the claim.

Vincent Gregory Levy (01:29:40):

It's related in the sense that as the court looked at the question in Badgerow, the question of a motion to vacate an award, and there, of course, the merits were not before the court, it was a standalone motion to vacate. And that was the premise of the question. And the court said in that circumstances you need independent subject matter jurisdiction. It didn't speak to whether if the merits were before the court and the case were reopened, there would be a need for subject matter jurisdiction. Justice Breyer, in dissent, noted there may not be, and I didn't read the opinion of the court to say otherwise. Kokkonen itself, upon which Badgerow was based, made very-

Justice Kagan (01:30:22):

If you assume that I think that Badgerow would prevent you from just relying on the federal statute to vacate the arbitration award, my understanding of the facts here is that you're going to try to get in through diversity. Is that right?

Vincent Gregory Levy (01:30:38):

We do have diversity. The amount in controversy was not pleaded, and whether the court would forgive that is a matter below.

Justice Kagan (01:30:46):

Uh-huh. At any rate, even if you don't have jurisdiction to vacate the arbitration award, because Badgerow says you can't do it based on the federal statute, and they're not going to allow you to re-plead your diversity claim, even assuming that, I take it that what you're saying is that the jurisdictional question as to 60(b) is entirely different?

Vincent Gregory Levy (01:31:10):

That's exactly right. None of these issues are obstacles to resolving the question presented. I'm just taking them as given, of course.

Justice Kagan (01:31:19):

Yeah, I think you have a tough road to hoe on the Badgerow question, honestly, but that doesn't seem to be the jurisdictional question that's in front of us.

Vincent Gregory Levy (01:31:26):

I will say that the courts of appeals after Badgerow have split on the question as to whether, if they have a case remains open, there is a basis to vacate an award, with the Seventh Circuit and the Third Circuit saying you do not need an independent basis, and the Fourth Circuit coming out the other way. That may be the next case.

Justice Kagan (01:31:47):

Okay, but I guess regardless, is what I'm saying, even if I disagree with you, or however hard or easy that question might be, your real contention here is that this is a different jurisdictional question, and that the Badgerow question can be decided at some place down the road.

Vincent Gregory Levy (01:32:02):

That's exactly right. And in terms of the question presented, the text is clear and the California courts are clear that proceedings and judgments are to be… Proceedings are to be interpreted broadly, judgments, at the time the rules were enacted, included voluntary dismissals. The California Supreme Court interpreted the same words to include voluntary dismissals, rejected the argument that voluntary dismissals could not be reopened, because it was voluntary. The point is-

Neil Gorsuch (01:32:31):

Mr. Levy, on that, your reading hinges on "proceeding", places a lot of weight there. I wonder, though, what wouldn't be a proceeding on your theory? I know what an order is, I know what a judgment is, but is a proceeding every docket entry? And if it is, then why do we have order and judgment? Have we created a problem where they're rendered meaningless?

Vincent Gregory Levy (01:32:57):

I think the way the statute was written was to go from narrower to broader, because every judgment is-

Neil Gorsuch (01:33:05):

Without doubt, yeah.

Vincent Gregory Levy (01:33:05):

… every judgment is also an order, and the way the courts interpreted "proceeding" would include orders and judgments.

Neil Gorsuch (01:33:10):

Yeah, does it swallow the whole thing, though? And does that create a problem? And what wouldn't be a proceeding?

Vincent Gregory Levy (01:33:15):

I think it's a belts-and-suspenders approach to making sure that there was broad authority to-

Neil Gorsuch (01:33:19):

So yes, it does swallow it, but we should overlook that?

Vincent Gregory Levy (01:33:22):

Well, it's a virtue, so I don't know that I would-

Neil Gorsuch (01:33:22):

It's a virtue, not a vice. Okay. All right. All right, got it. I got it, I think. And then Microsoft, how do you deal with that? Where this court said that dismissal with prejudice wasn't a final decision for purposes of 1291?

Vincent Gregory Levy (01:33:39):

So, I think this goes to an argument my friends make, which is to try to import the concept of finality from appeals to 60(b).

Neil Gorsuch (01:33:47):

60(b).

Vincent Gregory Levy (01:33:48):

And I think a couple of points in response, and we make them in our brief, the first one is that the rule makers use different words. They didn't use final decisions, final decisions subject to appeal. They made very clear initially that it covered whatever California covered, which is everything. And then the word "final" was added later to make clear that the court's authority of our interlocutory matters was not constrained. So, that history, and where the words come from, impart a very different meaning. So, that's number one. Number two-

Neil Gorsuch (01:34:19):

Number one's good enough for me.

Vincent Gregory Levy (01:34:20):

Okay.

Neil Gorsuch (01:34:22):

Judge Matheson's dissent, and his boomerang theory of finality, which you seem to embrace, so I don't mean it pejoratively, but that things can be become final, you didn't make that argument here. You're asking us, as I understand it, to hold that there was always a final proceeding, it didn't mature into finality due to later events. Is that right?

Vincent Gregory Levy (01:34:43):

So, ours wins under both standards, and we had endorsed, I think, something closer to Yesh, from the Fifth Circuit, which looks at finality when made. But we would win under Judge Matheson.

Neil Gorsuch (01:34:56):

You'd take it if you had to? Got it, okay.

Vincent Gregory Levy (01:34:58):

And as I mentioned, if finality turns on limitation period, in this case, when the dismissal was initially made, the limitation period's already applied. So, even that standard would be met.

Neil Gorsuch (01:35:10):

Thank you, Mr. Levy.

Justice Jackson (01:35:11):

Can you walk us through the enactment history and, in particular, the significance of the addition of "final"?

Vincent Gregory Levy (01:35:19):

So, initially, as I said, in 1937, the statute… The rule, I'm sorry, covered judgments, orders, or proceedings. The advisory committee notes made clear that's taken from the California decisions. And Professor Moore has said, in various places at the time, that the California decisions are authoritative. Between 1937 and 1946, some courts were reading Rule 60(b) to apply to interlocutory matters, so that if a decision were made or an order taken along the way, that-

Justice Jackson (01:35:55):

In an open, pending case?

Vincent Gregory Levy (01:35:56):

In an open, pending case, that the movement would have to show mistake, fraud, or the like under Rule 60(b), and otherwise the court will be without authority. And Professor Moore, in the article that is referenced in the advisory committee notes, says that's wrong because, as this court had said in 1922 in John Simmons Company case, courts retain plenary inherent authority to revisit interlocutory matters, and that's how it should be. And so for that reason, Professor Moore recommended, and that was ultimately taken up, that the word "final" be added to Rule 60(b), not to limit Rule 60(b), but rather to make sure that interlocutory matters would always be subject to reopening, unconstrained by Rule 60(b).

Justice Jackson (01:36:45):

And how is it that Respondent's argument is using "final" to limit?

Vincent Gregory Levy (01:36:52):

I think the Respondent have said "final" means res judicata effect, or that final means appealability.

Justice Jackson (01:36:58):

That it must affect the parties. It's the sort of certain kinds of proceedings is what-

Vincent Gregory Levy (01:37:03):

That's right.

Justice Jackson (01:37:04):

… Respondent uses "final" to do, and that therefore limits the district court's ability to address, after the fact, those kinds of cases.

Vincent Gregory Levy (01:37:15):

That's right. I think my friends are trying to inject, in the first step of whether Rule 60(b) is even available, a test as to whether there's an effect on the legal rights, when the intent was clear to make 60(b) as broad as possible, in terms of which orders, matter, or proceedings could be reexamined, and to make very clear that the circumstances in which they could be reexamined would be narrow, and they would have to be to meet the 60(b)(1) through (6) test in the courts, in the discretion of the district court.

Justice Jackson (01:37:45):

And you read "orders, judgments, and proceedings" not as some sort of strict list, but really Congress trying to say pretty much everything? Waterfront?

Vincent Gregory Levy (01:37:57):

That's right. And that's how the California Supreme Court interpreted it under the court's decision in Hall v. Hall. The court takes notice when the advisory committee takes a provision from a statute or other source, puts it into the federal rules, and holds that that is intentional, and carries the soil with it. At least as a presumptive matter, the decisions of the California Supreme Court interpreting "proceeding" to cover everything, and specifically applying their version of the code, which had the same operative language, to cover voluntary dismissals is strong evidence that that was intended by the rule makers. And of course we also rely on the word "judgment" and not just "proceeding" because, as I said at the time, judgments were defined to include voluntary dismissals, and that was the settled meaning in 1937. That's the way California's Supreme Court talked about it, too.

Sonia Sotomayor (01:38:54):

Can I go back a bit to Justice Gorsuch's question? There's some

Speaker 2 (01:39:00):

Some superfluity in your definition, but there is also, in the other sides, because every proceeding would encompass a judgment in an order, correct?

Mr. Levy (01:39:12):

That's right.

Speaker 2 (01:39:13):

Or a judgment in order because they require there to be some sort of judicial intervention, as I understand. That would mean that every proceeding would, encompasses judgment and orders as well, and vice versa.

Mr. Levy (01:39:30):

I think that both interpretations, all the interpretations we've seen have some surplusage, and in that circumstance, the court has said the [inaudible 01:39:40] surplusage doesn't apply. What I will say is, we do give independent meeting to judgment order and proceeding because they don't all mean the same thing in our view of the world.

Speaker 2 (01:39:48):

Oh, and you have some support for that because one of the provisions of this act talks about the date of the proceeding as opposed to the entry of the judgment order, correct?

Mr. Levy (01:40:03):

That's right. That's Rule 60C1.

Speaker 2 (01:40:05):

All right. With respect to this question of finality, the other side relies very much on the definition of 1291, and 1291 doesn't seem quite as apt an analogy to me as one would think, because that has to do more with what is the jurisdiction between a district court and an appellate court. And that's very different here because this is about the jurisdiction of a district court, correct?

Mr. Levy (01:40:33):

That's exactly right.

Speaker 2 (01:40:35):

And so, I guess, when you're pointing to the California cases and to the advisory notes, you're saying you should look at finality in the way that Congress was using it, which is case-ending finality rather than legal determination finality, correct?

Mr. Levy (01:41:00):

We do endorse the case-ending finality concept, and also whether, as Professor Moore stated, there is inherent authority to modify.

Speaker 2 (01:41:10):

It can't be the ending of the controversy, because otherwise there wouldn't be jurisdiction which they admit there is if a court signs a judgment dismissing without prejudice, which it does regularly. That doesn't end the legal responsibility between the parties, correct?

Mr. Levy (01:41:30):

That's right, and there are many orders that are deemed final for appellate purposes or otherwise that can be refiled, that are nonetheless deemed final because they terminate the case, and the court has sent that in its decisions interpreting the appellate statutes, which…

Speaker 2 (01:41:46):

Thank you, counsel.

Speaker 3 (01:41:53):

Thank you, counsel. Justice Thomas? Justice Solanar, anything further? Okay. Justice Kavanaugh? [inaudible 01:42:04]. Thank you, counsel. Mr. McGill?

Mr. McGill (01:42:13):

Thank you, Mr. Chief Justice, and may I please the court. I want to start with the question of jurisdiction. We know from Badgerow, that a section 10 motion to vacate under the Federal Arbitration Act requires its own basis for federal jurisdiction. We know from Kokkonen and Rule 82 that Rule 60 cannot extend the jurisdiction of the district court to new forms of relief, such as a motion to vacate an arbitral award. Petitioner needs a basis for his section 10 request, but Rule 60 can't supply it, and that was the only basis for jurisdiction ever presented below. That's the argument that there's no jurisdiction here.

(01:43:03)
On the merits, I want to point to three major problems with petitioner's construction of Rule 60. First we have a only good for only Rule 60 definition of finality. That runs into two really big problems. The first is that Rule 60 interacts with federal rule of appellate procedure four, to toll the deadline to file a notice of appeal. If finality means something different under Rule 60 than it does under Rule 4, we're going to have confusion where confusion is least desirable, the time and deadline to file a notice of appeal.

(01:43:44)
The second point is because a rule, the denial or grant for that matter of a Rule 60 motion is itself an appealable final order, his definition of finality, my friend's definition of finality would allow a litigant to bootstrap himself into an appeal from an otherwise unappealable order. His definition of proceeding means that prior to 1946, every docket entry could have been subject to a Rule 60 motion, even a complaint or a notice of appeal. Our reading of the statute reads judgment order and proceeding in harmony. One does not subsume the other. And the last point is that I would make is, the petitioner's definition here takes no account of the Rule 60's key verb, which is to relieve. There has to be some burden for the court to relieve, and a voluntary dismissal without prejudice that leaves the plaintiff free to refile his claims at any time in any court does not impose any legal burden for a court to relieve. I welcome the court's questions.

Justice Gorsuch (01:45:03):

So, do you think that finality is consistent across all of the federal rules of civil procedure?

Mr. McGill (01:45:09):

I believe that, with respect to Rule 60 at least, it has to have the same definition as final orders under Rule 1291. Otherwise, for instance, the petitioner's definition could take no account of collateral orders. The time to appeal a collateral order runs from the date of the order. However, under his view, because a collateral order doesn't terminate a case, it's not subject to Rule 60 relief and it couldn't benefit from the tolling that FRAP 4 provides for motions filed under Rule 60. And also, this court's decision in Stone versus INS, which we cite in our red brief, elaborates on how Rule 60 and the rules of appellate procedure work together to define the time to file a notice of appeal. His definition of finality is going to create confusion where it is at least desirable [inaudible 01:46:15] most needed.

Justice Jackson (01:46:15):

But what do we do about the fact… What do we do about the fact that there is evidence in this sort of record of proceedings that indicates that the committee here was inserting final for a particular reason? I mean, are you asking that we just ignore the committee notes and the enactment history which suggests that whatever finality means in 1291 here, it was doing particular work?

Mr. McGill (01:46:41):

Not at all, your honor. So, the finality requirement comes in and in 1946. In 1946, final, when used to describe a judgment or order, had a very particular meaning that came from this court's appellate jurisdiction cases going back to the founding.

Justice Jackson (01:47:00):

No, but do you dispute his recitation of the facts with respect to why the committee put final in this particular rule?

Mr. McGill (01:47:09):

It's not false, but it's not entirely true, your Honor. So, what the advisory committee note explains is that the final, the finality requirement was doing two things. One is it wanted to make clear that for final judgments, orders and proceedings, there was one way for them to be revisited, and that was through the Federal Rules of Appellate procedure. Gone were the writs of coram nobis, coram vobis, audita querela, and other things shrouded in lore in mystery. The second point, which was related to the first, is that the stricter standards under Rule 60 applied only to final orders, not to interlocutory orders that remain subject to the court's inherent authority. Now, that doesn't help petitioner. He's never looked to the court's inherent authority because under Badgerow, the court's inherent authority over an ADEA case would not give him subject matter jurisdiction to vacate an arbitration award.

Justice Jackson (01:48:12):

Well, it's interesting to me that you raise Badgerow because I'm trying to understand where that is in the question presented in this case, even as you have framed it in the red brief. I was surprised, given our colloquy earlier about the fact that there are two different jurisdictional arguments here, and that this case appeared to be all about the scope of final judgment order or proceeding in Rule 60. That's what you say in your question presented. So, what is this Badgerow argument? Why are we looking at that or caring about that in this context?

Mr. McGill (01:48:43):

This court should care about it because it goes to the lower court's jurisdiction under this court's decision in Bender versus [inaudible 01:48:51].

Justice Jackson (01:48:50):

I understand, but we didn't take the case to decide that basis for jurisdiction, right?

Mr. McGill (01:48:54):

The same of course was true in Bender versus Williamsport Area School District. This court has an independent obligation. Even if I were prepared to concede jurisdiction, it has its own obligation to assure itself of its jurisdiction and those of the courts.

Justice Jackson (01:49:07):

Why didn't you put that in the question presented that you presented in your red brief? I mean, you led us to believe, by looking at your question presented, that this case was all about Rule 60.

Mr. McGill (01:49:15):

So, two points, your Honor. First is I don't view it as the respondent's job to rewrite the petitioner's question presented, but I think the gravamen of your point is why didn't I raise this in our brief and opposition? And the answer to that is that, candidly, I did not understand or fully contemplate the jurisdictional significance of the petitioner's motion to vacate until we started briefing on the merits. And let's talk about that.

Justice Kagan (01:49:41):

But that's down the road, isn't it, Mr. McGill? I mean, you might have a very good argument on Badgerow, you might have a very good argument that there is no jurisdiction to vacate the arbitration award, but that's not what's in front of us. What's in front of us is the 60(b) motion and that's an antecedent question. One question is, can you bring a 60(b) motion? The next question is, if you do bring a 60(b) motion and get it granted, can you do anything with respect to that, or are you precluded from vacating the arbitration award because of Badgerow?

Mr. McGill (01:50:17):

So, I've got two points I want to make in response to that. The first goes-

Justice Kagan (01:50:22):

I mean, I like Badgerow as well as the next person.

Mr. McGill (01:50:25):

… I think it's fabulous.

Justice Kagan (01:50:25):

But it's just not the time to be talking about Badgerow. Badgerow, you might have a lot to say about Badgerow in a few month's time.

Mr. McGill (01:50:33):

So, let me address it with two points. The first goes to what the motion below actually did, and the second goes to the sequencing Sinochem point that has been raised. First is, what did the motion do? It starts at page 24 of the Court of Appeal's joint appendix. It's a motion to reopen to vacate the arbitral award. The only relief it requests is to vacate the arbitral award and it does not ever request to reopen actually the existing federal claim. And the reason we know that is the only other aspect of relief it requests is to appoint a new arbitrator to adjudicate that claim for relief. So, the only thing the motion does is to seek to vacate the arbitral award. It's seeking to use rule 60(b) as the jurisdictional hook to do that, something that the case itself could not do. So, that's the first point. What does the motion do?

(01:51:32)
The district court then breaks it apart into two separate orders. It says, I'm reopening under 60(b)(1) and 6, and then it says, under the FAA later, "I'm going to vacate the arbitral award." So, you have the only request that's ever been made is to vacate the arbitral award. That's the relief that requires subject matter jurisdiction. The relief that's being requested requires its own form of subject, its own basis for subject matter jurisdiction. The only basis presented is Rule 60. That is not sufficient under Kokkonen.

(01:52:07)
Second, the sequencing point. The Court of Appeals refers to this as a jurisdictional issue, but I don't think that's correct. We know that because under Rule 82, the availability of Rule 60 relief could not expand or contract the district court's statutory jurisdiction. When the Court of Appeals was referring to subject matter jurisdiction, what it really was referring to was the long history that a court could not, lacked power to set aside or otherwise interfere with a plaintiff's voluntary dismissal. It used a sloppy label in calling it subject matter jurisdiction, but the availability of section 60 relief really is like the question in Steel Company, whether a plaintiff's particular claim is available under the statute.

(01:53:06)
So, we don't think Sinochem sequencing actually is available here. It's more like Steel Company where the jurisdictional question has to come first and there's simply no answer to the fact that the only basis-

Justice Jackson (01:53:19):

But I don't understand that at all. I mean, after… I appreciate that the request seemed to merge the two, but once the district court broke them apart and issued two separate orders, and the rest of the way, there was a challenge as to whether or not the district court properly granted a motion to reopen, and that was the thing that this court took cert on, I don't understand why it necessitates us to care about whether the district court was right with respect to its other order.

Mr. McGill (01:53:54):

… Justice Jackson, it's because the motion to reopen had sought no relief on a [inaudible 01:54:03].

Justice Jackson (01:54:02):

I understand what it sought. What I'm suggesting is that that claim could never have been responded to by the district court until it had the ability to do something. And so, as a threshold matter, the district court said "This is a closed case. I would have to reopen it to give you the relief that you seek. I'm issuing order number one, reopening the case, and then here's order number two regarding the relief that you seek." And from then on, we all were focused on whether or not the district court made a mistake in determining that this case could even be reopened. And to the extent that that's the issue, that that's what was presented here, that that's what the courts have split on, I don't understand why we can't just isolate that as requested and answer it.

Mr. McGill (01:54:50):

I'm not afraid of the question presented, but the jurisdictional point is important here. If the motion had requested some form of relief related to the case itself, if it had been, "I want to re-litigate my case and vacate the arbitral award," then at least there would be a request for relief that, over which the district court originally had subject matter jurisdiction.

Justice Gorsuch (01:55:21):

Mr. McGill, ON the first one, as I understand the common law history, courts had, were considered to have jurisdiction over orders, even final ones, judgments, until the expiration of the term of the court, right?

Mr. McGill (01:55:37):

Except with respect to voluntary non-suits, your Honor.

Justice Gorsuch (01:55:40):

Correct. There's a little bit of… All right, but that was the general rule. And I understood 60(B) to say, "well we don't have terms. We don't do that anymore." But you have a federal question about your judgment and whether it should be reopened that's available to you, if you can meet these really hard criteria. What's wrong with that understanding of 60(B) and the jurisdictional point there?

Mr. McGill (01:56:04):

60(B), I would think that rule 60(B) can't expand itself, the district court's subject matter jurisdiction.

Justice Gorsuch (01:56:15):

No, of course not. But the point was the courts have always had this kind of power to fix injustices in their judgments and their orders, at least during the term of court. Got rid of that. But the point should remain with that change that they generally do.

Mr. McGill (01:56:32):

I think a district court certainly has jurisdiction. If you look at the Begerley case, the district court has subject matter jurisdiction to entertain an independent action attacking the judgment for massive fraud.

Justice Gorsuch (01:56:46):

And reopen for massive fraud or things like that.

Mr. McGill (01:56:48):

Correct.

Justice Gorsuch (01:56:49):

Okay. All right. Okay. I think that… I got that. And then, on final and what does final mean, and what it meant in 1946, more importantly, I took it to mean that it's not interlocutory. I mean, that's how Blacks defined it, that's how Moran Rogers, that's how the Rules' committee. Do you disagree with that understanding?

Mr. McGill (01:57:12):

There has to be a conclusive resolution of the issues in the litigation.

Justice Gorsuch (01:57:16):

Okay, I'll take that. Why isn't there at least a conclusive resolution that the petitioner's first non-suit is gone? They don't get another free bite at the apple, right? Voluntary dismissal, the beauty of it is you get another chance anytime you want. But you only get one. After that, you have to have leave of court. And here, didn't the district court at least resolve that by saying, "You've had your non-suit, you've had your voluntary dismissal." Why didn't it finally conclusively resolve that aspect of the plaintiff's rights?

Mr. McGill (01:57:57):

So, the dismissal is the retraction of a complaint. It doesn't resolve any issue in the litigation.

Justice Gorsuch (01:58:06):

But you'd agree though that the withdrawal, the non-suit as it used to be called, that does have a consequence in the world.

Mr. McGill (01:58:15):

The dismissal has a legal effect.

Justice Gorsuch (01:58:18):

The plaintiff doesn't get another free bite at the apple. He's exhausted his one [inaudible 01:58:23].

Mr. McGill (01:58:23):

I guess, I would phrase it a little bit differently, Justice Gorsuch. I would say, if he chooses to file a second suit and dismisses that second suit, then that disposition under the Rule 41 would be with prejudice. But that is an external circumstance.

Justice Gorsuch (01:58:40):

Okay. So, would that amount to a final something for your purposes?

Mr. McGill (01:58:44):

A dismissal with prejudice under Rule 41?

Justice Gorsuch (01:58:46):

Well, the second time. Say he withdraws again the second time.

Mr. McGill (01:58:50):

Yes.

Justice Gorsuch (01:58:50):

So, that would be? So, if he would voluntarily withdrew again, and therefore [inaudible 01:58:55].

Mr. McGill (01:58:56):

May I just elaborate why?

Justice Gorsuch (01:58:57):

Yeah.

Mr. McGill (01:58:58):

Because it's a conclusive resolution. It operates under the rules as an adjudication on the merits. It resolves everything.

Justice Gorsuch (01:59:06):

Correct. I got that.

Mr. McGill (01:59:08):

We would say it's a proceeding.

Justice Gorsuch (01:59:09):

I understand that. So, why isn't the first one a proceeding when he's exhausting his one free non-suit?

Mr. McGill (01:59:16):

Because it has to be a final proceeding and there's no finality because there's no conclusive resolution of anything he can refile in any court at any time. But I would turn also back to the point that the finality here has to have the same definition and same scope as that applies to final decisions under 1291. Otherwise, the notice of appeal tolling requirements make no sense, and otherwise litigants will be able to bootstrap themselves into appeals of otherwise unappealable orders. I would like to just address the California Law point, because it has been suggested that the 1937 enactment of Rule 60 somehow incorporates the Corpus of California decisional law. There's no indication of that in the advisory committee notes itself, and of course, California law does not and has never controlled the federal court's ability to review its own judgments. That has always been a matter of federal law.

(02:00:29)
It goes back to Chief Justice Marshall riding circuit in North Carolina in 1803 in Mars versus Murray. We cite that case in our brief, and the petitioner has no response to it whatsoever. He cites two California Supreme Court cases, they're both worth noting. The Palace Hardware case is a dismissal with prejudice. So, it would be final even under the 1946 definition. And the Stonecipher case he cites says, "A proceeding covers any step in the action seeking court action. A dismissal without prejudice, a non-suit is the opposite of that. It is a retraction of your complaint." It is saying, "I don't need relief from the court anymore."

Justice Jackson (02:01:18):

What if that's done mistakenly? I mean, suppose we have a situation in which a person files a suit and then they file a Rule 41 unilateral dismissal, say, a week later, and on a Monday. And on Tuesday, counsel rushes back to the court and says, "Oh my goodness, I made a mistake in filing this notice of voluntary dismissal. I did it in the wrong case." Is it your position that the court really has nothing, they couldn't reopen the case under those circumstances?

Mr. McGill (02:01:52):

Any relief would not come under Rule 60(b). Of course, the primary relief-

Justice Jackson (02:01:57):

Why not? Because it wasn't a proceeding?

Mr. McGill (02:02:00):

… Because it's not a final proceeding.

Justice Jackson (02:02:02):

Okay.

Mr. McGill (02:02:02):

And there's no burden that is being imposed on the litigant because, that for the court to relieve, because under your hypothetical, that plaintiff can simply refile his action.

Justice Gorsuch (02:02:17):

Well, but he's lost his one free non-suit, and because of his attorney's malfeasance and mistake, I mean, it could be fraud even, and it can meet all the 60(b) criteria, but the judge will be powerless under your theory to do anything about it.

Mr. McGill (02:02:32):

That's always been true going back to 1803. The real question here is whether Rule 60 did anything to upend that settled practice. There's no indication of that whatsoever. It certainly wouldn't come out of California law. All the petitioner has to point to in that is the Salazar case, which is a single decision of a single intermediate appellate court in California. That is not old soil that gets transplanted into the federal garden. The language of the rule does mirror the California statute. It also mirrors the New York statute and the Minnesota statute that are also cited in the advisory committee notes. So, there's no indication here that the rules' committee, this court or Congress ever intended to be bound by California decisional law going out into the future.

(02:03:33)
The last point I want to make is just with respect to, actually two points I want to make. One is the argument that this dismissal without prejudice would constitute a judgment. A judgment is defined by the Federal Rules of Civil procedure in Rule 54. It is a definition that applies in these rules. The petitioner has no answer to that. The dismissal without prejudice clearly is not a Rule 54 judgment. Finally, the question, Justice Sotomayor, you asked what would be a final proceeding here? The key point is, first, the proceeding is meant to cover the small sliver of conclusive actions, conclusive dispositions that are not themselves judgments or orders.

(02:04:27)
So, what might that be? A writ of habeas corpus? Proceeding supplementary under Rule 69 with respect to the execution of a judgment? Condemnation proceedings under Rule 71.1? These are-

Justice Kagan (02:04:43):

They all end up in a judgment or an order.

Mr. McGill (02:04:48):

… That may be true today, but it wasn't necessarily true in 1937, and it wasn't necessarily true going out into the future. The rules could change in a way, and in fact, you have Rule 53 masters when they're consented to be final. A ruling could be consented to as final. There's no actual necessity for a court order. It's better practice.

Speaker 2 (02:05:14):

Problem with all of that is it's, that they all end up, all of those separate proceedings end up with the court doing something.

Mr. McGill (02:05:22):

And I think what the use of proceedings, both in California, in the California Code and in Rule 60 is meant to do pick up those conclusive dispositions, that for one reason or another, are not under the heading of a judgment or order. It's not intended to swallow every order and every judgment. Our reading of the rule…

Speaker 2 (02:05:49):

Thank you, counsel.

Speaker 3 (02:05:54):

Nothing further. Justice Thomas? Justice Salito? Moore? This is better? Justice Jackson? Thank you, counsel.

Justice Jackson (02:06:06):

Thank you.

Speaker 3 (02:06:09):

Rebuttal, Mr. Levy?

Mr. Levy (02:06:12):

The respondent is proposing a rule that would render a court without any authority to remedy an issue of outright fraud or mistake, leading to the dismissal of a case, albeit without prejudice, but that causes the plaintiff to lose its right because of a limitation or otherwise, and that also leads to the loss of the right to bring a non-suit in a second case. That cannot be what Rule 60 was intended to capture. There is no evidence of that in the text or the advisory committee notes or the California decisions. The California decisions were clear on point. They're also in accord with the weight of authority among the states.

(02:06:49)
That's reflected in the decision of the Supreme Court of Connecticut and the loosest decision, which cites not only California for this point but also New York, which is one of the statutes that is cited by the rules' committee. But Professor Moore did say that the court, that that was the inspiration, and that meeting does come with it. My friend has said that there was nothing to relieve a moving party from in the context of without prejudice dismissal. That is not true. Beyond the right, again, I don't want to repeat myself, but the limitation periods would be one example, and the right to bring another case with an non-suit could be another, and unless the court has questions.

Speaker 3 (02:07:39):

Thank you. Thank you, counsel. The case is submitted.

Speaker 4 (02:07:43):

The Honorable Court is now adjourned until tomorrow at 10:00.