2:25-cv-575-APG-BNW MOTION HEARING - ROUGH DRAFT - DO NOT CITE!!!
32 MR. HAVEMANN: Because we are in an impossible
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choice in the meantime. And this is exactly what Justice Scalia noted for the Court in the Morales case that we cite in our opening memorandum and in our reply. It's a Hobson's choice, right? You either have to subject yourself to the risk of potentially massive liability if it turns out that a Court disagrees with you on the law, or you have to undergo all of the irreparable costs of compliance during the time it takes this Court to resolve the question and any appeal. And what Justice Scalia said for the Court in Morales is it is Hobson's choice. That is a classic case for injunctive relief, and there are many other cases that say the same. And I'll note that the State says that, well, these are monetary harms and you can normally recoup monetary harms. The key point for present purposes is, this is an Ex Parte Young case, it's against State officials, so the availability of damages is far from clear and probably -- THE COURT: But isn't this a self-created harm? I mean, you -- your client put out these election contracts even after the CFTC took the appeal to the Court of Appeals, even after the CFTC said you shouldn't do it, so in a sense, you've created your own Hobson's choice. You've created your own harm. MR. HAVEMANN: Oh, no, Your Honor. I mean, in any case in which a State law is, you know, alleged to be
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UNITED STATES DISTRICT COURT Judy K. Moore, RMR, CRR
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