This exercise is highly favorable to New Jersey. To give permission for; sanction. Should we read it to say authorized by, you know, empowering, giving the state imprimatur, if you will. And doesn't the context in PASPA make it seem like the state has to do something by law that is a scheme as compared to just saying okay, you can do it at these places? Or, as the U.
Judge Rendell hinted at this during the following exchange with Paul Clement, the former U. S Solicitor General and outside counsel for the sports leagues: "MR. I mean I think that in terms of context you obviously can look at the surrounding words. I think you can also look at the legislative history. I think that's still allowed in this country. I mean it's fair to know about it, but unless there's ambiguity in the law, you know there really isn't a need.
And again I look at the other words and they require something more than - - - I mean they really require involvement of the state, "promoting, licensing, advertising," you know, putting its seal of approval, if you will. And I read your opinion to mean that the words, and one of you referred to the fact that it's a stream of words, it has to do with the state providing the approval, a mechanism. It's almost as if you have a license to put in the window saying this is permitted here.
OLSON: You talked about a scheme and a regime, you talked about permit issuing, licensing, state issues license, affirmative authorization, authorization by law, state scheme, state sponsored, state sanctioned. It suggests that a partial repeal of state-law prohibitions against sports gambling would not violate PASPA so long as there is no state scheme or involvement.
The interplay of this key language with the interpretative tools discussed above would appear to leave New Jersey holding a strong hand following oral argument. While the express legislative purpose behind PASPA was to "stop the spread of state-sponsored sports betting," Congress was also concerned with maintaining the integrity of, and public confidence, in professional and amateur sporting events, which federal officials believed would be threatened by the widespread legalization of sports gambling.
But the leagues' attorney, Paul Clement, wisely refrained from playing that card during oral argument, in all likelihood because one of his clients the National Basketball Association has evolved in its thinking and now believes that the legalization of sports betting through the adoption of a federal framework would actually serve to promote the integrity of sporting events. They're concerned about states having state lotteries that involve sports gambling.
They are concerned with racetracks that already have venues for state authorized gambling having sports gambling. If you look at the Senate Report it's very specific. And Congress is worried that they're going to get involved in sports gambling as a way -- this is 20 years ago, or 20 plus years ago, but the horse tracks were already in a little bit of financial trouble, and there was concern that they're going to try to add sports gambling as the next solution.
And Congress was very concerned about that. Now, I think what that shows you is that Congress was particularly concerned with the idea that sports gambling would take place in the venues that states had selected as the being the venues for state authorized gambling. But there are several flaws with Mr. Clement's decision to highlight only select portions of the Senate Report.
For one, it makes no mention of the primary legislative intent behind PASPA: to stop the spread of state-sponsored sports betting and to maintain the integrity of sporting events. Clement suggests. The rule of lenity is premised on two principles.
First, a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is crossed. A second goal of the rule of lenity is to minimize the risk of selective or arbitrary enforcement, and to maintain the proper balance between Congress, prosecutors, and the courts.
But both the leagues and the DOJ struggled to pinpoint the line of demarcation. When asked by Judge Fuentes how far a repeal must go, Mr. I do not expect this to happen, particularly since it was not raised by the parties or by the Court. But it remains a possibility. Judge Fuentes' concerns go to the very heart of why I believe New Jersey may be on the losing side yet again despite having what I consider to be the better of the legal arguments under a pure statutory interpretation analysis.
The following exchange between Judge Fuentes and Mr. Olson demonstrates this tension: "THE COURT: I'm really impressed in how this whole thing is going to unfold, because I was very impressed, in reading your brief, with the number of regulations that the state is repealing, including oversight by the state and Casino Control Commission, the Division of Gaming Enforcement.
They will all, according to the state, have no role whatsoever in sports betting. And that's — THE COURT: Well, I'm a little concerned about that, because the function of those [regulatory bodies] is to preserve integrity in the process and now the state is saying they're out of this. So this is essentially a laissez-faire. Sports betting is going to take place in the casino with no oversight whatsoever.
As I said, like a ping-pong table game or a debate tournament. If it were, I would have a response to that. If the state is engaged, to address your exact question, in regulating the activity, that might involve the imprimatur of. It's not sponsoring, it's not operating, its not advertising; promoting; licensing; or authorizing. It's regulating. Would that be permissible? The Supreme Court denied certiorari. Christie v.
See N. Law Serv. Appellees also asked the District Court to restrain the State Defendants from implementing the Act and to enforce the injunction entered in Christie I. In response, the defendants relied on our reasoning in Christie I that the federal law allowed a repeal of state sports gambling prohibitions. See A. Christie, No. Christie, 61 F. Governor of New Jersey, F. The Supreme Court granted certiorari and reversed our en banc judgment.
See Murphy v. There was no discovery on the actual loss amount. In doing so, the Court relied on CoyneDelany Co. The District Court considered one factor that had been relied upon by the Court in Coyne, namely, a change in the law. NJTHA also urges that the District Court erred by exercising its discretion to deny bond damages and in concluding that there was good cause to do so.
The District Court had jurisdiction pursuant to 28 U. This Court has jurisdiction under 28 U. Garza v. Citigroup, Inc. Federal Rule of Civil Procedure 65 c states, in relevant part: The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.
Because these issues were not addressed by the District Court, we will not consider them. Verizon New England, Inc. It does not explicitly address when an enjoined party may recover on a bond, nor does it indicate whether and to what extent a district court has discretion to deny damages.
Although these issues have been considered by a number of other circuits, they are matters of first impression in our Court. We join the other circuits that have explicitly interpreted this term and hold that a party is wrongfully enjoined when it turns out that that party had a right all along to do what it was enjoined from doing. See Global Naps, F. Millennium Inorganic Chems. Lewis Galoob Toys, 16 F.
First, Appellees read the procedural history, as the District Court did, a bit too narrowly. In Sprint Communications Co. Instead, as noted above, whether a party is wrongfully enjoined depends upon whether it turns out that that party had a right all along to conduct the activity it was enjoined from doing. Thus, whether a party was wrongfully enjoined depends upon the final judgment on the merits.
See id. Perhaps one could plausibly read Rule 65 c as asking whether the District Court abused its discretion in granting the TRO. But this would distort the plain meaning and purpose of the rule. See U. Wilson, U. It suggests that we look back at the propriety of the injunction from the vantage point of the conclusion of the litigation, rather than stepping into the shoes of the District Court at the time the injunction was issued.
But to focus on whether a TRO was wrongfully issued misses the mark. But that is not the relevant question. Rather, it is whether the defendant was wrongfully enjoined given what we know today. But this is not incompatible with our holding. The District Court can faithfully apply our precedent, and still, when the litigation has reached its conclusion, the defendant may be found to have been wrongfully enjoined. Such is the case here. Was Y wrongfully enjoined? Similarly, in Nintendo, the enjoined defendant introduced defenses at trial that it had not asserted at the preliminary injunction stage.
The defendant ultimately prevailed. That the new defenses were not considered when the TRO was entered but may have affected the final outcome of the case did not preclude a holding that the defendant had been wrongfully enjoined. The District Court might have, instead, seized upon our reasoning that a repeal would not be an authorization in violation of PASPA, as the State Defendants did in enacting the Act. Indeed, in the mine-run of cases where a statute has been held to be unconstitutional, the issue of its retroactive application to invalidate previous final orders necessarily arises.
See Chicot Cty. Drainage Dist. Baxter State Bank, U. The lookback that is envisioned in the Rule is not an issue of retroactivity, or applying a ruling to undo or affect previous rulings; instead, it requires a simpler inquiry as to whether, if we knew then what we know now, should NJTHA have been restrained? This does not require the court at the bond hearing to ask, as the dissent seems to urge, whether the TRO was wrongfully issued, or to nullify any The dissent seems to reason that there needed to be a court finding that the NJTHA had been wrongfully enjoined or restrained.
Again, that is not an issue to be decided later in the case, but instead, is what the court at the bond hearing must assess, after the case is fully concluded. We next evaluate whether and to what extent a district court has discretion to deny bond damages and whether doing so was proper in this case.
A clear majority of our sister circuits have held that there is a rebuttable presumption that a wrongfully enjoined party is entitled to recover provable damages up to the bond amount. See Front Range Equine Rescue v. Vilsack, F. InterDigital, Inc. Sullivan, F. Nokia Corp.
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