overview of the proceedings in the district court because there has been so mischaracterizations of that i think are important in the briefing we don't have a chance to respond to the last brief then i'll address the issues raised and  appeal and i'll reserve the balance of my time hopefully around ten minutes to address towns and farms appeal so that's how i plan to proceed if that's ok that's fine thank you so in terms of the overview i'm sure your honour's know that this case arises out of a hepatitis a outbreak that was linked to towns and farms frozen fruitland product and the evidence at the trial show that there were many potential sources of contamination that caused the outbreak for example your court judge carter stayed in his findings of fact in this case the geno type evidence pointed to multiple sources for the outbreak from the evidence of the trial also showed that doctors pomegranate errol's that they were only used in some of the implicated lots that were recalled at the towns of farms product and that other lots included pomegranate errol's from a different company from turkey called san manufactured the product without hands and which is supposed to be safer well you have limited time let me just start asking you some questions here regarding the false advertising claim i'm just trying to figure out how i s this commercials speech if it doesn't propose a commercial transaction seems our our last pretty clear on that point i don't think i have to propose a commercial transaction if you look at bolger i think we're in a sophisticated era of advertising anything can be advertising the question is whether this was commercial and it doesn't have to your view is that let's assume for purposes of my question this is what happens that sending out a press release that corresponds with the f d a has announced its commercial speech it is if you include the commercial aspects with it that don't need to be in there so all you can do is send out the exact press release you can send out whatever you want but if you're going to make false statements then you can be liable for what's lost as it is to suppress the false statement was that there was a clear association between gardner's product and the outbreak when there wasn't a clear associate who did the jury nothing wrong with my girls didn't cause your problem and the jury says twenty percent or so of your claims losses are attributable to better your client so how do you how can you now make a false advertising our core theory is that how is that false advertising well it's not true it's not true to say i think it's in the gutter here provided rotten errol is correct well that's not what did i say that that's not what it said do you deny that well we deny it but i don't deny that the jury found that ok so the jury found it so how so should they should have said in are a bunch of other bad guys too well what they did was that they just oppose their products which by the way there was evidence supporting the fact the towns and farms  was the cause of the outbreak they just oppose their products with doctors products and singled out goner it was a much more complicated situation and that damaged governor that's our contention so in your view the its trace back analysis it was able to say well this is the common ingredient when that was not true well the jury except that it's true i mean i don't i don't know that i don't know they found in the trace back analysis was true so despite everything where we are at this point you're still claiming that that was not true and you're trying to put it in the context of commercials beach you know i don't think there's any question that if you have a recall press release and you're talking about the recall of of a product that's been contaminated that it's certainly possible to make commercial statements that don't need to be made in that press release and that's  contending happened here by the way don't forget this is at the pleading stage we never have an opportunity to try and prove what the motivations were exactly how these statements benefited towns and farms how they caused harm to gawker it seems it seems witness neither of them had any knowledge that san x was one of the suppliers so the analysis was completely undermined do you want to maybe we should ask about the punitive damages a ance that says what doctors financial condition is the only evidence that we have is what kind of assets they have and the law let's let's assume for a moment that you're right as a technical matter if there's i didn't put enough evidence in do we and or judgment in your favor or do we remain for them to cure that fault i don't know of any basis for them to be able to cure that default they had the opportunity during the trial to present the evidence to support their claim they failed to do it i not because you don't know anything about their liabilities and their expenses and whether they're being foreclosed on by bank for that loan you know nothing about those and don't i mean the law cannot be more clear that you can't just have assets and income so remind me how this arose did you assume you moved for judge was a matter so at the close of all evidence we made a motion for judgment as a matter of law we said your honor no evidence of financial condition the other side could have said at that time well then your honor let us fix the record they could have and did not you know i don't know whether you know what the judge would have done but they didn't do that i don't know with judge what the rules would allow at that point for for a party to say i can cure the defect frankly i'm not sure whether they would have but they certainly could have tried but just in the rules don't allow for a reman now at this point i don't know what would have allowed for a rebound they had their opportunity to present the evidence and they didn't do it i think that there's insufficient evidence of financial condition which is a requirement it's their burden and that's it the punitive damages or should be  struck so in terms of the other argument on malice and oppression and fraud i think it's a lot more difficult of an argument for me to try and go through and talk about the lack of evidence supporting the only way to get punitive damages in this case was for fraud intentional misrepresentation and most of the case was about whether who was at the cause of the outbreak not what misstatements did anyone make preview because i think it's really important particularly with respect to the jury instructions in this case and the verdict form all of which invited and allowed the jury to determine what the amount of damages would be if any if they found dr to be liable and i just want to make really clear that if you read judge carter's order on the post trial motions which is page one of the excerpts of record judge carter talks at length about the that towns and farms including mr gard who's about to argue approved the verdict form that had the blanket at that allowed the jury to make its determination and that townsend farms used the verdict form that they're no complaining about during their rebuttal closing argument and that they were asked after that whether they had any objection to the verdict form and so you know they they created the situation that resulted in this verdict and i just want to make sure that because i haven't had a chance to respond to that in the last brief and i will go into it more when i come back with thank you very much largely rest on the briefs and that at ten minutes i'm going to move towards the cross appeal so that i split my time and happen i'll address the questions as the court moves me forward through this process the punitive damages issue seems to have two pieces we need to look carter said if you look at what happened there were representations by gawker to towns and farms and a food safety statement there were reputations representations by gawker and its food safety certifications and remember the context in which we're in we're selling food into the united states that's going to go into the stream of commerce i'm a little bit more concerned about the burden of who it falls on the bill of the to pay a  why why did you not introduce any evidence of doctors liabilities expenses or money owed to rd parties we actually did introduce tangible evidence associated with their ability to pay and the burden does rest with the plaintive however if you look at the court's determinations you've got the cases basically of adams green bank had adams specific works and point me to the record where you point out where you say think that it's actually if you are asking the court to presume that the assumes liabilities what you have to do is go back and look at what the real premise is and financial ability to pay which is about wealth  crunch the question john did you put in any evidence of all cases with the liabilities that i might have that that offset price and a good way to look at this is to go backwards from the general six on page twenty seven i know a bit and i thought i looked at this and i didn't remember seeing you know evidence of liabilities expenses or money owed to rd parties or anything regarding that  of anything that would show net figures but if i'm wrong this is a good opportunity and a valuable opportunity for you to show me and to tell me where i would find that what the court if what the court is looking for is financial statements the court won't find the financial statements what judge carter relied on what the case law allows us to rely on is the evidence of wealth and the testimony from so that the separate point to your point is that you don't need to put it that is evidence you don't need to put in evidence of pay for punitive damages more art than science and then it speaks to what you do there is no set pattern in all these cases bankhead does a good job of serving cases and it speaks to what in fact is wealth what we're looking for is to deter not punish to turn punish not put put out a misnomer because there's no evidence of the financial condition at all correct adams had evidence of financial prove evidence about liabilities when there is evidence of well i think adams green and bank had all say the well let's talk about that because i know adam says this whole you know we describe declined to prescribe any rigid standard for measuring  to pay but in baxter vs peterson the california court of appeals expanded that in most cases it says evidence of liability should accompany evidence of assets and evidence of expenses should accompany evidence of income and so i mean that's what i'm looking at and i know you're pointing to two bankhead but it seems like ban has i know you're relying on bankhead to argue that this court should assume that cockney or can pay the damage awards because you know dr neither argued nor introduced evidence at trial that was unable to pay but defendant's financial condition using you know just profit figures or the amounts that were submitted here and not necessarily net amounts because i'm not sure that bank  stands for the proposition that the jury did not rely on net worth so baxter's repeats the premise that most cases and that's it's a language not all cases and again it's a court of appeals case the premier court says that there isn't a specific formula for proving wealth and if you look at the record here you have the general manager who is a part owner of the company getting on the stand and testifying business is good the company's in good shape and it's important to look at that because that is after you have a thirty million dollars investment you have increasing sales from one hundred and fifteen million dollars to one hundred and thirty million dollars that's a purchase a vast set instead of a lease of assets and he doesn't take the stand and say business is bad we've got all these problems he basically says business is good so what can i have for today she's tell us at least as a matter of state law is we have to be able to determine whether the size of a punitive damages award is excessive and the way to do it is to look at ability to pay so even if i assume they had ability to apace some punitive damages ward in the absence of evidence of liabilities how do i know this one was excessive because when you look to the evidence that is there the sufficient evidence that we were able to present and the owner and general manager of the company saying business is good business is good could justify a one million dollars reward or a forty million dollars war depending on the ability to pay of a company and he told me how the award in this case is justified in light of the evidence in the cases that is excusing me right now what the court relied on there was a case where the owner of the company said we're in the black that's the same thing as saying business is good there is if they were not able to which cases and i can submit that to the court at a later time it's a case that's been cited in our briefs i don't have it at my fingertips right now can you confirm or challenge that if the reason the inferences can be drawn from what the jury decided and so it's stop and so the punitive damages the court did a good job of laying out if we think there's not enough evidence to support the punitive damages award that was submitted here do you get a rebate or are we done i don't think we have a basis for remain and i think that you have to look at this by looking at these cases and say that in fact judge carter got this right so if we think you got it wrong then we should we should throw out the punitive damages award and not remain for new trial that's up to the court but i believe that the judge carter got this aspect of the case correct when he cited in his order said that if net worth is the measure for punitive damages nets which seems to be with the california cases say what evidence  we have here of net worth net worth is not the measure and net worth is not what the california cases say they will continue to see what we last said when we were last looking at the california cases and discords that it's what we said they said so i prefer i appreciate that and it's you who is saying that and me interpretating them in with the cases that i'm reading is that they continue to say there isn't a bright line and financial network is not a big does not that there's a tax lawyer but don't we have to have so how can i determine in this case three because like your question at the very beginning there was a thirty million dollars investment at the very began and and then from that five years or five years before but then there wasn't anything subsequent to that other than development and growth so was it five years before and well they are an aspect of it in the courts have said there is no bright line and in fact it's more art than science and as a result judge carter found that based on the testimony as he sat there and as the jury inferred the jury made the decision and th  report on a recall event is a commercial event and that's sitting out to the public marketing so that we're attempting to engage in some commercial activity  friend mr or mr williams i just respectfully find out unbelievable that that in fact could be considered a marketing event of some sort and commercial speech will rest on our briefs on that on our cross appeal what i think is incredibly important for the court to understand is that as i as i want to walk you through a short timeline so that while i have the seven minutes left in my time what the individual plaintiffs me being one of them as the lawyers understood regarding this scenario this court has the authority to change the judgment and move modify the judgment on aquittal indemnity and apply the set amount of stipulated damages that the parties all agreed to and that comes from as we look at this do we have that power the question is why should we exercise i this case and that's a great question this is this is a case that seemed to have been tried on the theory that there were many wrong doers that was their theory you were one of them they said you townsend was one of them they were the jury found they were one of them and the other people were wrong doers to say like couldn't a jury look and say maybe you saw we stipulate that you suffered twelve million dollars in damages from this event but only twenty percent of it was the fault of these people because the jury was never given a comparative fault instruction so the jury was never given casey because forty nine speaks to when you instruct the jury the jury has to have some level of instruction on the jury form which is when they're doing some back thing to determine how much of your damages were caused by their no actions no what they what they were not the jury was told in our verdict form and in the jury instructions that in fact if they found gawker liable under the act will indemnity that in fact what they were supposed to do is apply the set amount of damages in the stipulated that was what the original verdict form and the jury instructions speak to that and if the court would give me leave to point out just a few factors to and help answer that question and help form what was in the minds of the lawyers it's incredibly memorandum of contentions of facts and law in that memorandum of consent and in fact it s it's at s c r sixteen dollars seventeen cents specifically at seventeen they indicate what they have to prove for comparative fault they being the defendant they write my colleague who is representing the co plaintiff and in that e mail they specifically they change they they are looking at an eighteen an instruction number eighteen that talks about comparative fall they strike the comparative fall they write in the margins we are dumping the affirmative defense there is no more reference to a jury instruction for comparative fault for three thousand eight hundred the jury than we've been try this case is the court refers to san a the geno types that's an all or nothing defense and what is important is if you then get the jury instruction twenty if you compare jury instruction twenty to jury instruction eighteen that's it you are three  all all of the comparative fault language the jury was never instructed on comparative fall at any point this month if you listen i mean i think this is what we're guarding what you're talking about and paragraph ten of the did a comparative fault without an instruction to god bless them but they but they were told to then they were told to do this is not a joint and several liability cases it no so the jury was asked to determine what damage each defend caused and made that determination what's wrong with that as to there were negligence claims and what becomes wrong with it is that the verdict form which was changed at on us and i want to speak to that the jury the verdict form that was changed on us when you would get to act little indemnity you would say here did they prove liability which is the all or nothing case in my friend mr williams tried all or a number of it from the with changed on you did you object to it we did not object to it but you cannot object to something that you don't know about in here's how do you not know about it quite easily so the timeline associated with that and this is all in the record you began with oral argument we come in carter's courtroom and in the morning we have submitted our proposed jury instruction at around six am judge carter when we arrive announces that he's going to accept the plaintiff's jury instruction mr williams and his partner stand up and there they have some kind of objections judge carter tells us he's going to have no argument on this but he's going to give the defendant some deferent at eight hundred and forty seven there is an e mail that is the mid and if you look at that e mail which is the revised instruction and remember this is what was important that i walk you down through the timeline of starting out with affirmative defense of comparative fault in completely dropping that and then trying this case on it everybody but us it's an all or nothing if you look at that specifically the red line version which is submitted to purely poem prove negligence it has a number of questions that would get you to is the judge going to argue this what's going on so there's just a red line version and the judge never points this out to us or morning arguments go on going to hear your position you never saw the jury that's exactly right went to you never asked to look at that no we thought we were being using our own now did you ever ask to see the jury form before it went to the jury we didn't need to we didn't understand oh there was a change no we didn't ask too many of your excuse that's not going to be asking you ever asked to see the jury for forward the jury we didn't ask because we had it in front of us it was our verdict form that we had submitted i submit your verdict form the judge said at the beginning of argument that morning before before closing of the we were to tell me where to record the judge said i'm going to submit the verdict form but you gave me towns and i'm going to the judge says it is order the parties objected to that form they marked it up the and so so it was clear that it was an objection to that and if you recall what the record says the parties and the parties were objecting to minor factors associated with the judge what judge carter also says is if i can get this timeline out which is important the judge says townsend pharms attorney it wasn't townsend firms attorney me who we had been the person working on the minor details over the lunch hour it's the townsend farms attorney who was up working on his closing argument without a final verdict he says that attorney ruff unst the verdict we had a copy of it that attorney was referencing he would been able to reference it because we were all working on it he was building is argument we came back we sat there and we started closing arguments right answers to all that occurred yes then later on you found out that the two say we object to the jury for it says we want to raise and brief the issue so we are going to object it doesn't use the word objects it says it raises the issue that we're going to brief this and that's where the briefings came from the sunday as we went through the analysis of what happened by polling from the court the posted verdict from a form that was signed by the jury and began to understand what was happening to us then we wrote on easter sunday to the judge and asked for the briefing that's in fact what happened and i'm three minutes over my time and i want to respect the court i will stand here and answer questions all day long and i know that's not what the court wants ok thank you very much and the plaintiffs submitted a nd amended proposed verdict form in the morning like six in the morning or so we came in and we objected they were carter says this is all on page nine in ten of judge carter's order it's all accurate it's all the record that's e r ninety are ten judge carter says don't tell me your objections you know i want you to put a pencil to paper and what we did is we made a red line we sent it to everyone sent it to all counsel forty five in the morning with our red line objections saying no we need to have a blank for the jury to decide what did it what about the damages if any then there was a lunch break and here's where frankly i'm a i'm just a little have to call it as it is mr gar sat at the table with my colleague on your goldstein and judge carter and judge carter's clerk and they work during the lunch break on the verdict form and everyone approved it and mrs goldstein submitted a declaration that said that and if you look at mr garza declaration which is in the record mr gore's declaration  mitchell closing argument but it was finalized for the rebuttal and as judge carter points out townsend farms lawyer used it extensively and i'm quoting judge carter use the verdict form extensively in the rebuttal closing argument not only that judge carter after the kid after the jury retired but the for the verdict was announced judge carter specifically and this isn't on page ten of his order and it's reflected in parts of the record that are actually not included but it's quoted in judge parker's order he said now counsel do you want to have a look at these again the verdict forms the instructions silence ok we're off the record they never objected they never reasonably unfairly compensate the defendant for any injury you find was caused by the defendant so put it to the jury and the jury also had it put to them to decide what amount of damages if any and the verdict form and that's what i'm trying to figure out is are there damages awarded us against the defendants case now they're not they're not they're not there's only damages awarded is against you or gawker and united use which causes presumably and there was ample evidence of that ample evidence of causes that we don't even know potentially because of the different geno types and the jury made a determination and it decided what amount of damages if gawker was responsible for you argue percentage damages no we didn't argue percentage she just argued that you were libel we argued we weren't liable we argued there were multiple different sources we argued that sound x was libel we argued the towns and farms did how to participations it you're right i don't know but there but they the that's not i don't think we can do that i don't think we have to get behind and understand exactly how the jury came to its number there's there is sufficient evidence to support the verdict and that's really all that we have decided according to mr gar mr garside ng i think it's the vs lumber company in the dam just deputy stipulation and that both parties agreed if i understand his argument that liability was the sole issue at trial what's your response to that  of the damage with that's not our damage so you know i think that the only thing that we stipulated to always stimulated to is that instead of having a bunch of lawyers come in and say how much money people settled get that the lawyer settled underlying consumer claims for that we just agreed with those numbers were that's always tequila to that's it and so you know what we're talking about here on amending the jury and so on amending the judgment is pretty extraordinary remedy and it's under an abuse of discretion standard you know and i'm not i'm not so much concerned about the amending the judgment argument as i am with their attack on the damages itself because the word should we send this back for a new trial in which there is no motion for a new trial it doesn't matter if there's not sufficient evidence to support the judge well there's also no challenge to the sufficiency of the evidence all they're doing is saying fix the judgment  give us the number that we wanted i'm just saying that there is sufficient evidence because of all the evidence of the different causes dollars that was the only evidence in the record billions of dollars of investment from outside sources would that be enough to show what you're asking me if at some point it becomes permissible to four eight is it appropriate no i don't think you can that's the purpose of the requirement there might be an appropriate number based on a large investment but would could but by the way you'd want to know whether what the terms of that investment were or whether it was