that both men do you did speech and enjoined speech in that the court mandated that our client send out a clarifying e mail reall the lanham act should cover the e mail in question in this case the may twentieth e mail sent out by our client our position is that it doesn't factor into the lanham act in that it is not quote commercial advertising or district court utilizes the whistleblower definition that is used in federal court but the definition of whistleblower is a is a person lodging a complaint and i think that in our reply brief what was their complaint march yes yes an individual who had worked for i thought she was just examining she in our reply brief as well as in pleadings that were filed within the district court there had been a phone call that was made to our client by an individual who worked for vital complained that he knew people who worked at phil's who packed eggs poor handsome brooke and knew that the eggs were not being passed or raised and so when we look at merriam webster that sort of lay person definition in the dictionary of whistleblower it is run who reveals something covert when forms against  another so the layperson definition of a whistleblower fits as attorneys especially within the federal system we have a we have a different definition of whistleblower but for someone who is outside of that system the use of the word whistleblower fits squarely in that type of situation and in fact you know someone with internal knowledge within the industry it fits even  contradicted are they not i'm sorry those are the statement about the whistleblower complaint is contradicted in an affidavit and also the smy point actually well they were not present and available at the time of the audit and of course the person who sent the e mail was not the person who did the audit so adele douglas who is the founder and the president of human form ability inspection this is a different this these are farms that are certified by the american humane association handsome book certified by the american humane association they do not do traceability dot it's so in other words their certification is an umbrella hanson work is certified there for all their source for farms more sort of own a whistleblower complaint we recently conducted raised the nature of the eggs because the source farms are not independently inspected in other words the certification into the force of the whether whether or not the statements are true false and that is undoubtedly a factor of likelihood of success on the merits but we have not addressed whether this is commercial advertising or promotion we also have not really talked about the fact that earlier is that so the second part of this email your client so i hope you'll consider changing suppliers that goes in every carton has claimed such as free range or passed to raise our verified our inspectors to be exactly that this in turn protects you but and what is what it the reasonable person infer from that that they're not being asked to change suppliers well not necessarily when they're being asked to consider changing supplier not necessarily because again what is missing from this email this mail does not say change from american humane to certified humane i hope you will reconsider changing supply and yes i understand  but the problem that is being x that is being alerted to the recipient of these emails is not that handsome book forums eggs are not certified by the right company or by the right sort of fire it's that they are not humane at all so so there is any issue with all that would have well there's there ane farm animal care is the ethical treatment of animals so if there were if the belief upon reading the auditors report was that the certifications were all in place and everything was was as it should be then this would not have occurred and in this e mail would never have been sent right and then so the issue from my client's perspective was the animals are not being treated well so we urge you to change suppliers not just ms i'm sorry your honor no goal here not because american humane certifications are bad but because no certification is bad so we're due to change suppliers because ethical treatment of animals is good and we assure you that if you see certified humane you have ethical treatment and about us it was well although there was some commercial aspect to that there is more of an aspect of political speech involved here i mean this organization is more along the lines of a consumer reports kind of organization that it generates a large part of the revenue from this ok well i mean you know but that revenue when it earns revenue that revenue when it comes back into the company it doesn't go into advertising or packaging or store displays the way that handsome know revenue does that matter you to revenue you to prize the problem this email i am writing to share some potentially troubling news about one attempt was made to verify cation in that it closes by saying i hope you will reconsider changing suppliers and what i think is interesting is that between the complaint and the i'm sorry could you repeat your question your honor i'm sorry you are you seem to you seem to be saying that this is focused on highlighting the public good issue of the humane and ethical treatment of animals of of these the chickens and i guess i'm not quite sure first of all i don't see anything to suggest which has to do with how much space the chickens have to move around in and how much time they're out of the cages and thing and things like that and so these are retailers that are receiving this this e mail and i mean it's important to note that  douglas does not name particular brands of eggs in this e mail she does not say so you should buy you know these are the brands that we suggest that you buy and some of these retailers are already buying eggs that are certified some brands can be certified by american humane and certified humane there is not there's no rule that says you can only be certified by our client or american humane and that i think is a very key point that you know are very handsome brooke says you know they're in competition with each other a brand can choose to be certified by both you know by both of them  issue of being able to verify hanson book in the complaint seems to be saying or it does say explicitly repeatedly she she she she she meaning adele douglas should have made a phone call and made these verifications in the brief as one of the participants in this potentially troubling news ye the district court properly preserve the status quo of the parties before the e mail was sent and issued minimal narrowly tailored mandatory relief to reduce the immediate harm be filing handsome broke as a result of the email  handsome brook farm is now attempting to place blame upon the inspection report i want to make clear your honor that we're bringing this action as a result of the statements in the e mail not in the inspection report the ins the e mail makes several statements that go beyond what the inspection report states that make the e mail itself actionable under the lanham act in to the extent that that fact is relying upon you know claims to be fact perform no such review that report also says this report does not constitute certification or consultation nor should it be used for promotional purposes fagged does use that inspection report for promotional purposes each track ignored both of these caviar in the inspection report and used it to its initial minimal support to promote humane certified eggs  and denigrate falsely answer book farms eggs the inspection report does not contain the words in fact none of the eggs were pasture raised it's fact added that's false  taking it in the viewpoint of the listener let's let's establish let's understand what the district court determined to the listener who the listener was they were commercial buyers from the top ten grocery store chains in the united states over sixteen thousand stores reading the first statement when one of the first statements in the e mail based upon a whistleblower complaint j a five for the district court determined that the audit was not was quote not because of any complaint the district court determined the whistleblower complaint statement to be false the district court also determined  the the statement and i read the exact statement in full in fact of the three producers whose eggs were being packed into h b f cartons none were pasture raised the district court determined that statement to be false and  not demonstrated any argument or pointed to anything else in the record to show that that determination was in clear air because it's all that mean that it's commercial i think your honor it doesn't our position is that paragraph certainly falls within the quote kora notion of commercial speech and the false statements in the email leading up to that core notion statement  false as to no evidence as we now know that they're not right that would make it commercial but i'm what i'm or what i'm saying is that these statements themselves they say i think the e mail the entirety of the email is of a commercial nature and the chief is positing a different question the second paragraph is out it's simply have indication that there's a problem or something amiss here with no solicitation and nothing else attached to it is that enough to make it a commercial  listener was was were to be disregarded and if these false and if the false statements were given to these large grocery chains that would be enough either w no solicitation the second paragraph just falsity and distribution get to those grocery chains yard that that would place the that would be actionable your honor because the viewpoint of the listener as this force the fourth circuit has determined that the viewpoint of the listener is an important aspect in addition to the three part test that was stifled the whole purpose of the purposes for humane societies and others like bias is the promoting part off and that is just stand terrible news the news is false some of it and i get given to the grocery grocery chain but i don't do in a solicitation say you know you really need change we're better we can do it better and you need to change that's all gone with that would not be a lot of violation yes your honor it would because the way the way that  would be because of what because the way that eleven twenty five a one b is stated it references false advertising or promotion in the misrepresentation and so stating those false statements itself ok in the framework of judge gregory's question it seems to me that there are three components i think at least as i see it there's the expression itself and it's false we're seeing that then there's the i guess i would call it targeting of the recipients of the message and three there's the solicitation and i kind of think i've heard you say i hope i've heard you say that you can't draw the line after falsity i think i think we're not in agreement on  that i'm just trying to understand the hypothetical i think that mine isn't a hypothetical just asking where in your argument think about it where in your argument do you dr consumer report that would not be actionable but we would further investigation may need to be done to determine whether that alone would be ac in this situation we have a targeted e mail sending and false statements and if fact has pointed to no evidence in the record that contradicts the judge the district judge is conclusion that these  h statements sent to commercial buyers with that important final paragraph and so  on continue to take into account the viewpoint of the listener in additional literally false statement determined by the district court is that the organic certification was not current and as i'd stated the final paragraph is the twist that that bad presents in this situation the entirety of the email  as free range or pasture raised or verified by our inspectors to be exactly that this in turn protects you the essence of that statement your honor is saying hire us hire our licensees do not hire handsome  tailored in fact you honored the brook farm had asked for a website correction in the district court determined that that was a step too far and issued a mandatory relief in a organic program or under american humane in so h facts arguments that they are prevented from speaking generally about handsome books eg certification process or speaking about their humane advocacy or political advocacy it is simply not reflected in what the actual district court order reflects one other point your honor is that we disagree that this e mail is a prior restraint in the national federation of the blind the f t c for twenty third three three one at three fifty this court noted the long held distinction between prior restraints and then subsequent decisions to to correct a wrong false statement and and  you have a few minutes i'd like to clarify that are the prior restraint issue is my client being restrained from discussing disseminat and so the suggestion by our client that handsome brooks eggs may not be i want to say what they're cracked up to be but  authorized by adele douglas intitled verified ashtrays label claims or any substantially similar email regarding the source or quality of this dissent distribute groups that are packed by feels fresh eggs yes so that's what we that isn't that second part is where we feel the prior restraint part comes  in but if i may your honors when we look at both in the case we had a retail seller with a neck anomic interest who referred to specific products in the flyer that was sent out and who can see did that it was an advertisement and the court has found that the supreme court found that all of those factors together  constituted commercial speech in gordon in breach we had parties that were at the same level of the supply chain and they were able to find that that we were dealing with commercial speech and here sentence makes a commercial speech because it's a pitch for the services the problem is that our client doesn't sell services to retail establishment our client is a nonprofit that inspects forms the one thing he was pretty adamant about was not backing away from his argument that it was the meal as a whole that was problematic including the targeting and i'm out of where i'm i'm out of time well m on that you don't need a direct competitor relationship but again that that really was a standing issue and there should be some level  of this is an unfair competition case right i mean this is that the idea of the lanham act is to that's why it's indirect here allegedly because it's indirect because obviously if if  there's grocers like the sell eggs that have been certified to be humanely raised chickens and yours and you you you certify that process and you stand with the people you used to do it you know you need required to be direct that's what it means it could be in direct route only one step removed here sometimes two attenuated yours is quite clearly the next step to indirect yes i would i would suggest in response to that i would say that i don't think that just because someone can affect your sales or affect your bottom line the for the purposes of the lanham act we should expand the lanham act to encompass all of those potential parties especially when it's going to encroach on terms of advertising your services if that's i mean that's the question and i don't think it may i respond please i think that if our client had listed off a bunch of egg brands that were certified humane and said buy these instead of hand some buck that might have been different but but but they did not  choose to identify any the problem that i think you run into here with i thought about the direct because the market you hit the market when you as a problem for affecting affect your sales well change suppliers well may i of course because that was the that who was identified as having the problem now that's part of what falls well first of all that hasn't actually been determined to be completely false but at the audit site and it's in the appendix there there are these pallet labels first of all these pallet labels don't think that i think the question is just going to market i understand i think i think you're right and i think  question recognizes that there will be a line too far in the only problem i'm having is that it seems at least to me that you drew the lot that you drew the line here and well and i do want to point out just one thing if i may  sort of it there were pallet labels associated with these source farms that happen to feel roni asli have our client certification on so there was this triggering event during the audit we're