st amendment of the district court below analyzed all of the issues pending in this case and ruled in favor of and mclean on all of them except the final one the actual please rest and i'll focus my initial attention and most of my attention in this argument on that final issue the question before the court is whether the complaint alleges actual malice as that term is defined by the various st amendment standards and as that term is defined as the word plausible is defined by the landmark decisions in but less than a probability but more than that twaddle and it ball are very articulate in describing the sorts of things that will not do and the sorts of things that will push the plaintiffs over the plausibility line so what will not do what's not good enough threadbare allegations are not good enough the go conclusions are not required is that the plaintiff set forth sufficient factual detail that the legal elements of the claim might plausibly be proved critically it's not necessary that the complaint prove the allegations of course not it's not necessary that the complaint even show that there is a probability that the elevations would prevail all that's required is a probability and we think on this score the district court below simply analyzed the case through the wrong prism i want to commend to the court two  revealing sentences in the district court's opinion that we think show the mindset that got off the track here as the district court analyzed the complaint the st comes at the very beginning of the district court's analysis of actual malice and the nd comes at the very end of that analysis in the very end of the opinion the district court said at the beginning in and out quoted directly quote without more than is mustard here there is not clear and convincing evidence that global witness was aware that its story was fabricated or to improbable something advocate but then at the end of the opinion the district court says without clear and convincing evidence of actual malice and only strands of evidence plaintiff's pleadings fail to meet their burden well that is the sort of language one would have expected is that from the very beginning global witness was fixated on a story that was going to be alleging that exxon facilitated or was complicit in bribery and it did so when rex tillerson who had now become secretary of state under president trump was in control of exxon well isn't that the way isn't that the investigative journalism works they start out with a hypothesis and and of course that's true your honor however it's our submission that if that hypothesis was the sort of hypothesis that was so pre determined and so fixated in the journalists mine that they is the the letters that came a week before publication that went to my two clients but many other person involved in these events as well as to the consultants who had analyzed this entire deal in which the journalist says unequivocally we think you've taken bribes now your honor that could cut into directions that could have an inculpatory inference that this is a continuation of this fixation and it had been made up from the beginning and that they were blind to anything that would counter that and it could also have an innocent explanation that they've done their homework and now we're going through the motions of contacting the persons that we're going to be targeted before they published our point is that if this is standard isn't this also standard journalistic investigative to sit practice that at the end of an investigation the journalist of the journal use case contacts the target and says principle may be accurate ultimately after a fully developed record in the prior decisions of this court that articulate the thoughts that you've just described your honor all came after the plaintiffs had the benefit of a thorough investigation and a record so if you look at the cases relied upon by coble witness relied upon by the district court tabular a s was after a jury trial lawrence versus donnelly was after a fully developed record on s judgment and the court ultimately ruled that despite all the notes despite all the sources despite all the references we had met the burden and we think that what's key here judge somewhere mid is the distinction between the standard on a rule twelve b six motion and the distinction between the standard on a motion for summary judgment and buzz i'm not even sure you have to make that argument do you would know your obvious and your things your honor the elaborate explanation by those that global witness contacts contacted as to why it was utterly implausible that these were bribes the fact that the that the money went to hundreds of people all the way down to the custodial workers the fact that the decision to initiate the payments was because this was a landmark deal for liberia of the sordid it never had before that the direction came from president sirleaf this nobel prize winning president st st person who was a woman head of state in africa there were many in any indication this was  to play d librarian officials nor that exxon musetta payments were in the next on even a new set of payments were current we think that statement helps us tremendously your honor because we think it's speaking with a one hand what is overwhelmingly communicated here is that they've got the goods on exxon and they've got the goods on these officials and they did it and then they admit in the very same document they don't know whether they did it and so they write a story creating the impression this is bribery this is bribery this is bribery that's how we want you to see this story but then they explain well we're not sure and if you convey the impression six members of the committee and five consultants absolutely your honor it is stronger than that and i think that that is in itself enough to cross the threshold required by  is at least plausible given what they have said themselves that this was communicated with reckless disregard for truth or falsity you can ask if i question so so if if all we have in a complaint is an allegation that the publisher said something like you know we believe you may have committed bribery and then there's a vehement denial by the people to whom the correspondence of directed it says no that's obviously that that's not our case that we are we have all these other industries and we have the fact that seriously although they accuse the consultants of bribery they drop out of the picture although they advisor to the president someone who would be sort of akin to a white house counsel in the united states who had approved the deal hit it he doesn't he doesn't show up in the final allegations there are there are all these different pieces and as we  strongly urged in any defamation case these are all that most plaintiffs will ever have at this early stage before they can look at e mails before they can look at text messages before they can depose sources before they can examine the journalists before they can see the earlier drafts before they can see what the editor said to the journalist this might be a good story to go forward so even as as your honor a said there may be some element to this that is that tracks routine journalistic practices there's also a pattern here of the tracks the way defamation cases operate in the real world and we think that there's no fair characterize our opinion as as threadbar or relying only on buzz words it's factually laid it goes deeply into everything that's in this global witness report and the inferences that to which we aren't titled just just as in baseball when tie goes the runner in a case like this if there are multiple inference is possible we must get all of them at the front and you know as i spent all my time on this issue and i know that there are many others and i know you'll hear from my friend mr bowman and many others i i do want to say that at the front and i'm sure i'll have a little bit of a chance to talk about this on rebuttal that on the slap issue here we think the the case is extruded really simple there is simply still today a dissonance between the standard under twelve b six and the standard under the district of columbia  law under the if you slap law the plaintiff must a deuce evidence to defeat the slap claim nothing like that is required to rule twelve b six in fact it's not permitted and under the n t slap law the burden shifts to know your point is just on the merits that if assuming we do reach the issue that you ought to prevail and the ante slap statute is not probably before us because about us actually your honor i think we take both positions we say very forthrightly we don't think it's appropriate for the panel to entertain the issue because abas is the binding precedent of the circuit now the other side that is entertaining the issue it's just that abbott's result resolves it the atmosphere is also i think the two i think the two effectively come together because there is this narrow band of exception that says if there's an intervening decision that absolutely abrogates a prior decision a subsequent panel may be permitted but is but if if there is if man does not constitute tha remains good law so the merits and the power of the panel i think your honor in effect i guess what i'm saying is that what's at stake for the other side on that issue is the possibility of obtaining attorneys fees so one could make the argument that if that's what's at stake and there's no need to reach the issue at all you're not taking a position you're saying reach the issue but then rule in our favor because abas boss how you say it well still doubts you haven't made that argument flee because clearly it would be a terrible trap for the unwary for us to suddenly be saddled with attorney's fees when we forthrightly admit that we chose the federal district court forum because we had been led to believe by many  advantage in the case if they get the benefit of a little bit and i think i think i'm party probably has standing to say that but that's the very reason reason we should win because if they get that tangible procedural benefit no grounds for cross appeal here on the part of the fan but go on because it may well be unnecessary to even reach the flaps that slaps that you appreciate that you're on ok thank you i lost my colleagues have further questions for you on your opening arguments will will let mr bowman go and then you'll get rebuttal time and just so just outline a procedure if there is a cross appeal you case brought by two former senior liberian officials against a nonprofit organization published a white paper a nonprofit organization that has a long history of working with the liberian people to treat each and ability of their government goes to the runner our position is this case does not pose anything close to a time in this case the district court looked at the pleaded allegations of actual malice in the complaint and asked the question you know has pleaded e so and tom in asking what others the obvious reason to doubt you have a mixture of objective standards and subjective the obvious reasons to doubt is an objective standard jetted stand yes runs ok what i think is important here to remember and emphasize and i don't mean to involve actual malice but this report thirty five page report with one hundred and twenty five footnotes the plaintiffs raising the question not knowing whether it was true or false they investigated whether or not these admitted payments these payments bonus payments that were received by these officials that were larger than any will salary following the completion of the alone the gates the possibility of sufficient actual must wait that's your point my point is we read that differently that concession by the appellants here concedes there wasn't a subjective awareness of falsity the report false so in other words they they go beyond your contention they say you didn't know but you were ignored evidence that the story was false your honor we dispute that there was evidence that global witness contacted each of the certainly i'm only making the point that they don't make the concession that you said that yesterday on our point your honor is that the allegations will take into the  three buckets that the allegations of a preconceived narrative this court has been clear in the jankovic decision a preconceived narrative is the nature as churchill mentioned of investigative journalism you've got your test theories a preconceived need  notion and allegation of a preconceived notion of a story is only evidence of actual malice if it's coupled with facts that plausibly suggest that someone wanted to fulfill that preconceived narrative through false why isn't that injurious to your position on actual mahler's our position is well ok you have let's assume i do endo that the st step is made out there's an implication of bribery now in which case who are the bribee the bribee is would be individuals who received the largest payments and voted for the deal and why when that include the consultants who got fifteen thousand dollars apiece are you speaking about the commission the i six people at least six people right yes remember this is all quite public right i'm not sure i follow that there's no secrecy about this there's no secrecy payments i see no secrecy or honor there's no secrecy because the liberian good government law which global witness will champion require the publication of that information and the point of this report was to encourage the publication of similar information in the united states so access to avoiding my question you the bride these other six at least the six individuals who got thirty five thousand dollars grace it disputed according to you zero evidence that acts on had any knowledge of these payments global in this including their report that they did not have evidence of that payment which is why they called for an investigation oh i wait a minute now if you're alleging concerning abroad on is not correct it would not inherently improbable given the history of this oil concession why a question why isn't the only problem this is all public bronze take place in the dark of the night and i think not always your honor in two thousand and seven the liberian government investigated and adjudicated that there was in fact bribery over this very saying everybody got thirty five thousand dollars it's under spirited that this happened after the deal was over it's under this deal that you have no evidence connecting actual antony's payments none at all internally to get the legislature to approve but keep it didn't you article d imply that exxon did the bribing the oracle asked the question whether it was appropriate for exxon to provide a pool of money to be raise the question whether exxon did the bonus well you can raise you raise a question without any evidence at all ever an allegation of bribery without any evidence at all your honor the evidence is that the pool of money was paid as part of the two thousand and thirteen transaction following that transaction the pool of bonuses was paid the report raised the question based on these understood the disclosed facts whether or getting a bonus there is zero evidence that although there's an implication in your article that exxon did the bribing you have zero evidence connecting exxon to this money the money i'm not sure that's true your honor that the money was paid as part of the transaction and if i was expressly timed out of the transaction as for a job well done to the people who worked on the deal and i learned to take your point under that cleary i was an expert i can tell you under that theory every investment banker who takes his share of the transactions in a sale of a corporation to another would be guilty of slightly different your honor when they're public servants who are not supposed to necessarily receive bonuses for you think so you think the only block that they've got bonuses is per se evidence of bribe standard that is bribe would be so public without any indication no privity between exxon and this with these bonus payme i think the evidence your burden is on appellant to show awareness of falsity here i take your point that you're asking what affirmative evidence does global witness had if you assume it made an implication that it did not squarely make  its report of bribery i would say the evidence is that global witness sought comment global witness included comment global witness sent forth all the bases that it understood why it was asking for an investigation which i believe taken in the full context of the report illustrates that potentially encrypt corrupt or improper or bribes are not inherently improbable in liberia when you're dealing with the disposition of state assets like that well license we should just assume the library is corrupt and i wouldn't say that your honor however this this particular oil concession did have a history of corruption one that was acknowledged by exxon want to proposed multi step transaction because it was concerned with u s money laundering laws given the original privatisation of the two thousand and seven concession and can that goes back to the st question whether there's an implication  take your point rather so if we assume you keep taking the point but if you let's say you take a point and you can't have the response that you try to make several times which is that all you were doing was raising a question because that does fight th promise of the line of questioning right so if you can't just say all we're doing is raising the question and you have to assume that there was an implication of bribery then do you accept the proposition that if there was an implication of bribery there were obvious reasons to doubt whether there is bribery we do not your honor our position is if we came out if the global witness report came out and said we think these are bribes the reasons we think these are bribes are completely set out in the report everything from the history of the transaction to the large payments that were unusual there's no dispute that payments like this had never been made to these individuals there's no dispute that the legality of accepting these payments was decided by the people who were going to receive them it's not dispute it's alleged in the complaint that what the person who decided to give to make the bonus the president her son received one of those payments all those facts are set forth in the report including the responses of the individuals that global witness was going to name is people who both received bonuses far in excess of their annual salary and voted for the transaction to provide the funds for those having laid out all of that evidence if it came out if the witness that came out and said we think these are bribes that's and conclusion that's a conclusion amply supported by the disclosed facts that lead to that conclusion and there is the previous record for a full year still back on the the district court i think properly regarded that as somewhat of a non sequitur because the reporter for this had used to be individuals who both voted for the transaction and received  large bonuses the idea that there were others who also received bonuses that were smaller and didn't vote for the report that is not an obvious red flag that not disclosing that somehow illustrates the global witness knew what it published they they knew it was false they asked they said this is what we believe based on the information we have what is your response in light of what response opal stronger or not it was an accusation i think the actual language or letters your honor is we believe this is likely bribes under liberian law but that's what i call an accusation and global witness took those responses decided ultimately not to make the allegation in its report and also included the responses and the explanations by those officials in the report i don't think that's probative of a high degree of awareness or probable falsity that's probably live of and intend to portray fairly complex factual situation idea that it's inherently improbable in the disposition of a liberian oil asset it's impossible that there could be bribes paid and oh well a standard impossible improbable inherently improbable your honor it had one before him another with regard to that precise concession just a few years earlier so our position it's not inherently improbable that those could have been bribes connecting x sundanese payments zero they take place after the deal is spent you have zero evidence d indicate that exxon even knew about the bonus payments that's reports as much i'm not going to dispute that that's true yeah but that seems to me that undercut enormously your defense on actual  issues the standard likely to succeed on the merits is this is that the plaintiff can't succeed as a matter of law it's equivalent to twelve or fifty six dollars in most anti slapp cases  defendants will proffer evidence and it will be the equivalent of a rule fifty six dollars motion which under rule fifty six dollars you know in early rule fifty six motion the respondent can explain that it needs discovery in our case is  a little bit different we moved to dismiss under rule twelve b six for failure to state a claim and no discovery was necessary but i think if a claim is insufficient as a matter of law under rule twelve b six it  can't be likely to succeed on the merits because the claimant cannot prevail as a matter of law under man and under an order or because i agree with you and in friedman the case was treated essential like a rule fifty six based on evidence but i don't think that in a way that in and i slap motion needs to be treated can i just ask you about the way this issue gets teed up because there's an appeal there's a cross appeal there's the underlying question of whether there's actual malice and there's the anti slapp issue so there's a number of ways that we can do the decision tree but let's just suppose just i know you're going to resist this phyllis just suppose that the on the appeal that the decision is made to send it back on actual malice and i guess your argument would be i'm thinking your argument would be but correct me if i'm wrong there would be because in order if the aunt has left that she does apply then that would impose a greater evidentiary burden on the plaintiffs and if understanding your argument your honor i don't believe so i believe our argument in the district court was that the entering slant motion we prevailed on to the same reasons as that will be six so we were aligning  standards under the federal rules with the anti slapp and i believe that if the court were to say that the motion to dismiss was denied given at the end i slap on its merits incorporating the organs of the motion ways and to the extent that it applies automatically it imposes more procedural burdens on us and we would otherwise have i want to just turn to the merits and again i don't think i need to be very long because the dialogue between the court and mr bowman in the dialogue between the court and me have already i think a limited the pivotal issue so i just like to connect the dots in a few ways st there is an interconnectedness between the underlining  falsity issue did this alleged bribery would a reader come away from this thinking they are saying these folks took bribes there's an inherent interconnectedness between that issue and the actual malice issue and you saw it revealed constantly when pressed mr bowman would constantly fall back on all we were doing was asking questions all we were doing was calling for an investigation and as i have conceded to chief judge three of awesome if that is all they were doing  we don't have a case but the district court found that was not all they were doing and when you read the report i'm sure the court will say it is at least very plausible that's not all they were doing that they were affirmatively making the case this is a bribe this is a bribe this is a drive and yet as you've already seen revealed juxtaposed with that is obvious reasons to doubt and the last thing i want to say that remember we don't have to prove the obvious reasons to die out at this stage we just have to have plausible allegations of obvious reasons to doubt and as the quoted sections from our brief reveal in the dialogue between judge silberman and mr bowman  hypothesis is a they have essentially conceded they have obvious reasons to doubt they say so essentially the text and given that this case should move forward to discover thank you cashman just one question  just a factual one so there there is a letter that has the language the judge someone was quoting i just want to double check and it says there is no evidence that exxon was aware of these payments is that in in the complaint yes you and and your honor the i don't remember where but what i what i will say is that that the entire report was incorporated in the complaint and we rely on the entire can report and so i think that that the cross appeal i think the issue is is fairly straightforward that man attempted to reconcile and interpret for the st time the standard for prevailing in the end i slap statute which was the precise issue that found conflict with the federal rules man clearly said we fine that it comports with the federal rules given that there is no alignment between the substantive standard to dismiss a case prior to trial there is not the same conflict that existed i don't understand how there is a why am i because under man itself and out of the subsequent case but even a man itself if you're going to bring a type of a nice latin looked into for evidence and it's been treated as a rule fifty six motion and the defendant has to prove there's no disputed material fact it would be an odd outcome to have a statute aimed at protecting speakers like global witness speakers that have been dragged into litigation and exposed to the expense and rassmann of litigation on matters of public concern one too early so our position is they rule twelve motion as a matter of law you don't have to get to rule fifty six if a complaint can't survive rule twelve it also doesn't survive rule fifty six and therefore the claimant isn't likely to succeed on that and in that motion there's a different standard as as i understand the d c court of appeals decisions you have to do more to get past a rule twelve motion in d c court and you would in federal court under the anti slapp statute and if that's true then when it gets in federal court the federal stroppy slaps at you it's true your honor you have to do more than a motion to dismiss in state court if you rely on evidence but those procedural rules of a motion to dismiss don't apply in federal court you only have rule twelve or fifty sex and you know our position is that you can't be likely to succeed on the merits as the man case said were claimant could not prevail as a matter of law if you can't state a claim under rule twelve as a matter of law ok all right my colleagues don't have any further questions at this point mr small i thank you for your arguments the case is submitted your honor thank you