denied an anti slapp motion as well as a motion to compel arbitration on a subset of the claims on the review here is to novo in both counts the outset caius challenge jurisdiction as to three or as to the commercial speech determinations below for counter claim seven nine ten and eleven which in parts were said to  justify in vocation of the commercial speech exemption and slap statute but in other parts the court granted the ante so for those very same counter claims and the underlying documentation germane or issues your made factual points germane apply to both so we believe jurisdiction wise and properly under the collateral order doctrine so this is done for all tell us that we're supposed to court in striking there and saying that the commercial speech that three of the statements were commercial speech then we can't review them right isn't that the teaching of brasil well i think because if you look at the allegations right because the it's pretty specific that what the district court said was commercial speech was was an e mail and an e mail and joel wallach's oral statements just to be there isn't something by i think it was a verified complaint and allegations related there too in the same documents it is granted and with respect to the overall document it sang the position of these people justifies invocation of the commercial speech doctrine the problem with this is that in order to assess the commercial speech doctrine you have to look at the whole document and in order to assess what the whole point is we shouldn't address the commercial speech doctrine well that's the that's the statutory provision but what i'm saying is that's the state statutory provision here in federal court under the collateral  order to decide this case at all i would argue you have to look at the whole thing because there's really no different in for a seal i mean brasil we said we're not going to look at the allegations that were denied on the basis of i think it was public kobliner twined when you start to address the so you're asking us to extend the law in the in this context is that correct so there's not a case that supports us doing that so we would have to distinguish brasil and say but here where there inextricably intertwined we're not precluded from looking at the district courts denial on the basis of commercial speech to actually understand that i actually think it's consistent with the entire line of cases that established the collateral order doctrine and that is because in the interest of justice a healthy judiciary system as is there you cannot parse these claims and produce a adjudication of a matter that is supposed to be dealt with at the pleading stage and so because of the nature of the way the court address this with the overlapping rationales an application to the very same set of facts in the same underlying documentation i think as you address the slap aspects you must also address as also the case that has argued to the court that the entire body of all of the counterclaims ought to be assessed on the commercial speech doctrine and to address a response to that argument you would of course have to take a look at the commercials picking picking up on that in terms of the commercial speech on the on the things that the district judge concluded were not covered by the commercial speech exception isn't i mean aren't they that essentially covered by the same motivation that prompted the judge to conclude that the other items were covered by the commercial speech except i know that was an awful question it are it is and i think that goes to the point that it's an extract a billionaire twined with the merits of the anti slap in general  even those that he's granted no if i make progress somewhat on that as to the commercial speech exception argument it is wholly vacuous in that it doesn't meet the elements of the commercial speech for part test in order for the exception to apply in particular the statute the first two sections which deal with the proposal well first that it must arise from a statement by a person that about that person or persons business competitors business operations certain of them do one with respect to dr wallach does not because he's neither an officer director shareholder employee or distributor he founded the thing the right did he found it directly contrary to the evidence that we cited in the brief there is no four factual basis for that determination it's iranian and then with regard to  that the statement must be for the purpose of obtaining approval for promoting or securing sales or commercial transactions in a person's goods or services there's absolutely nothing in these documents which does that there's nothing here which proposes a sale of anything in fact these documents fall into line with the cases that establish that simply communicating a business communicating about a competitor is not enough that you actually have to show that the purpose is for the sale or promotion of goods or services which there's nothing in these documents to support that conclusion and that element is indispensable of course all four elements to it right now you and three when you just talked about right now i want to amend three three and three is in this each of these elements is indispensable but three in particular is indispensable and was not found here so you're saying that if that if the speech doesn't directly concern a purchaser sale then doesn't it's not covered so the district court's theory if i'm getting it right was that basically this was all about trying to keep the salespeople in the fold it's a communication in the case of the email w the wall of the mail not the dr wallach communication in the car but the e mail wallach while he may know that communication is to distributors within the company telling them of the company's position with regard to a suit filed in that in the hopes that they don't jump ship basically well i think that's an inference that you would drop perhaps but it's not in it and you have to have in it this is a specific staff for quire meant that not foreclose every businessman from communicating or business one from communicating to their their employees but rather one that has to hold out a purpose of selling promoting and so on which is  utterly absent from the i guess i'm a mess and have a little bit of a hard time of that because it seems to me that if what you're doing what you're doing is trying to set tell your sales force don't pay any attention to those other people over there all the bad stuff they're saying about us stay in the fold that seems to me that that does have something in the whole business depends on them selling the myth the items seem to need to them what they have that it is for the purpose of obtaining or securing or promoting sales or lisa's it has nothing to do with  talks about not to make a sale it's for the purpose of securing sales right and that's a leap of faith beyond the docking here ok i mean just telling your set your employees stay with the company is not selling something in an abstract world of all competition in the universe telling someone to stay with our company well you say well that might be the economic interests of the company he people here are not going there but that's too attenuated the statutes very specific has to arise from a statement by that person about that person's or a business competitors business operations or goods in the first instance to the statement must be made for the purpose of obtaining approval for promoting or securing sales in goods or services not i hear proceeding on how or we may proceeding on to the argument and on the merits of the anti slap there are six days at issue here these are simply if you take them one by one either communications of the actual document pled in the case the verified complaint or a description that it was filed and of the cause of action in it without editorialization now those fall are classic examples of what is under the litigation privilege and they are also classic examples of what cannot be defamation because they are true and in addition to them being true let's take a look at the individual contexts in which they are communicated now if we take a look at  or contempt or ridicule or hatred of any kind it's a dispassionate description of the position of the company in response to litigation simply cannot qualify as defamation there could be no injury there could be there's no nexus between what was said and injury and none has pled in the pleading where the counter claims there's no there's no pleading as to the just or  pleading as to the nature of the publication being one that you could tie into defamatory injury no specific claim of injury of any kind with regard to the police the press releases five sentences in length it announces the filing of the complaint in the court and then it describes the causes of action that are there that's it no editorialization further no further discussion classic example of what is protected under the litigation privilege classic example of what is protected on the fa report privilege if the court's order were to be upheld on these points we would have an effective gag order we would have a precedent which stands for the proposition that lawyers may not announce to the to the universe that they have filed a suit that's probably docket that individuals may not inform other people by sending them a copy of the complaint this cannot be defamation could simply cannot be under any reading of reason worrying where the court has already found that there was commercial speech and because of that under four twenty five point one seven easy you can't bring the rest of the cause of action up to the court of appeals when we do have a role for all seems to say that we can do issues so so getting back to me for all fish i just want to make sure i understand your argument because that case this the california supreme court is talking about x causes of action that combine to a cause of action that combines allegations of activity protected by the statute with allegations of unprotected activity as a correct procedure is just strike the or order not consider the allegations of the unprotected activity and just consider the protected activity and so is the alice's under the slab suit statute according to the california supreme court as of twenty six stand as it is in this case we would not look at the commercial speech of the denial press releases and distribution of the verify complaint which that the district court thought at least some of those were not protected indeed i do want to address that in let me first talk about i think what you were addressing your honor and that is with respect to the contents of the verified complaint in the proceeding itself if it were to just sit there then we are not claiming that is inappropriate we're not claiming that that somehow is outside the litigation privilege what we are doing here is saying ok time out what's take let's take a step back here and look at what's happening if you look at four twenty five seventeen the reason that statute exists is because companies were abusing it and so what the california legislature said was you know if you have commercial speech then it's not anti slapp there's no right of appeal look at this case and what this case is this is a case that was brought by one competitor against another competitor the anti slapp action is doesn't even relate to the first complaint here that was brought by in jeopardy telling the distributors what steve while it was sending out e mails to all of the distributors one hundred twenty thousand of them as they say in the complaint was intended to destroy the time of its launch in early two thousand and sixteen you look at all of those and then you can go through the specific elements and see clearly that you don't have that they all qualify as commercial speech and let me talk about first of all for one all of the speakers are selling for sorry and you have any products dr wallach well there's nothing in these statements that is defamatory they call these people well to the extent the press release is merely repeating the come the elements of the complaint why isn't that protected by the litigation privilege if the press release again it would depend on how it how it went out to your saying merely repeating the elements of the complaint or it's a complaint was filed and here is what the claims were in the complaint is not protected by medication prevalent i don't think so and here's why i mean that would be a really bad idea and that's because you could circumvent the litigation you could you could circumvent defamation actions tortious interference actions false light actions and business disparagement actions which is what is harming my client right now by filing all kinds of outrageous things in a complaint that's protected sure no problem then you issue a press release and you say hey it was the law for the press release and says hey everybody take a look at this point and here or here or we say here are the things we say in the yet there are one of them is i'm not sure if it addresses abraham but our g n p ery twenty seventeen statements to the press generally are not privileged under california civil code section forty seven they don't achieve the objects of litigation they're seeking vindication of the public of somebodies view of the litigation and that's not right i would just be an example of those cases and i don't know of a case that says that you  counsel wants me to also remind the court about the importance of the functional connection and i think that's a very important here as well and that's something that just a shame you talked about in the rodriguez case that if you if you send something out to the world hundred twenty thousand people through through westie you send it to business for home and have it distribute it to its hundred thousand e mails and four to five million visitors that's not privileged under the litigation privilege because there is no function and your point about abuse is that is that when you don't want to do is have a rule that says i can file lawsuits in my next door neighbors an axe murderer and then send that to everybody and say well it's just litigation privilege that you said in a lot better than i d and that's exactly what my point is and with the with the functional requirement those statements about the litigation have to advance and so examples of that would be looked at by writing to somebody i'm advancing the litigation if i send something out to people informing them of the status of the lawsuit and they are witnesses they've provided documents these are the cases they've been cited by and jeopardy well that is advancing the ball but if you simply take what has been said horrible things have been said about my client in a complaint and then people third parties who are interested in have some interest in the litigation and it's result right well there's yes right i agree with that but then you have to define what interest is and interest is the functional requirement that you recognized in the rodriguez decision in two thousand and two you have to you have to be advancing something it's not just a current interest you know everybody maybe have some sort of general interest in the fact that there is a litigation that's not enough to say venom on hundreds of thousands of people and say well you must be interested in this because you're in the multilevel marketing industry so opposing counsel also argues very porting privilege which the district court said required more privilege is business for one and the allegation is the business for home is a captive publication arm of your jeopardy there is no editorial control but is there any orders is there any definition of what constitutes a fair reporting privilege of the court decision fairly vague on that it has to go to a public journal and so what and so what does that mean so what so clearly it's a journal it's a trade journal and it's public because it's distributed to the los angeles times for example let's say as that because now we have we no longer have his papers we just have opinion pieces and and now everything's over the web and whatever so so what what case or what do you rely on for that proposition one thing that we do know is websites are not public journals and if everything has become a web seems like the new york times website isn't a public journal i would think maybe the new york times website if that is the avenue and it  have editorial control of what's distributed to me and i'm sorry i don't have a case off the top of my head but i think the exercise of editorial control all to mostly is what's the most important but here we don't get to the fair reporting privilege because the only outlet that is subject even arguably public journal is business for home and this is a motion to dismiss when a time to all of the all of our allegations is as being true as well as all reasonable  inferences and at this point we have a disputed issue of fact as to the one fair report privileged opportunity in the court correctly found and rogers you get discovery on that i guess my question was the i was confused by the ruling because i couldn't see what the question of fact was first you have to know what the legal standard is before you could know what facts you would need to produce so i didn't see what the factual question actually wasn't as this issue factual question is year i just got a couple minutes i'd like to talk about arbitration issue again we've got a significant jurisdictional block here as i see it if you have we don't have a motion to compel arbitration we don't have a motion to stay the litigation what we have is a twelve b six motion to dismiss and one of the bases for the motion to dismiss that there it was that there that the contract is has an arbitration but what's the effect of the district and that that what happened in the tenth circuit i suppose the court could take judicial notice is that it dismissed the case and and went along with essentially a waiver argument that the case in california had gone on and there had been dozens of depositions  five hundred so so the district court sent it to arbitration that that was appealed is that correct that the district court said that there may be a political arbitration provision here including as to what kyle which hadn't signed up for arbitration but the district court said i'm not going to get to that issue i'm going to leave that up to an arbitrator to decide and right on appeal with the tenth circuit is whether it's appropriate for an arbitrator to decide that issue and we don't think it is just it it was because they're asking a court to dismiss they are going to the court and say we want the court to do something we're going to tell you in my experience as a district judge people call that motion the wrong thing all the time i did it doesn't mean it doesn't mean it did not teeing up the issue well if they were king of the issue your honor what they should have done is they should have moved to stay that litigation and tell that issue was resolved and instead we spent a year and a half and more money than i can even count on five six hundred docket entries all kinds of third party discovery that they wouldn't have had had it been in arbitration fifty subpoenas to third parties numerous depositions of third parties that prejudiced my client and therefore there is a waiver even if there is jurisdiction to initially address the arbitration issue the motion to dismiss was not just a motion to dismiss it was a motion to dismiss in favor of arbitration which is written into the judge's order it was treated by the opponent as a motion to compel arbitration was treated by the court in the same way and the parties argued that this matter needs to go to arbitration under the federal arbitration act on of the provision that concerns following the arbitration agreement provisions because it expressly concerns those  legal pleadings that direct case arbitration which this was with regard to the points about arbitration there is no prejudice here because the most of the counts are not that the whole proceeding concerned count counterclaims one through five to go to arbitration that's what i mean that's the limit or just a court order the district court's order is limited to counter cards one through five for the issue of arbitration but and prejudice if i may and i have little time finished now here you are over time so just please wrap up all right with regard to the point of prejudice there is no prejudice here because we filed our motion within fourteen days of their filing their amended complaint