does not in united's statements made in a press release about a lawsuit but not incidental to that lawsuit even if it but me ask you at the start because we are guess state law claims so if if what is your answer to that if you pled a defamation claim or are these claims statements in this press release the landing that claim for unconquered competition is based on that the landing that claim for false advertising is based on course and so if you are right about that and if you're correct if that's applicable claim have been met as a as a gateway issue well i think i would train it this way the lower court dismissed all of the claims based on unreported case that held the claim sounding in defamation are immunised under nor pennington and also based on the court's decision that the underlying litigation was not a sham all of the claims remaining since they sounded defamation could not be under our argument anyway dismissed on the basis that not pennington immunizes defamation because the supreme court extent that you're saying that they seldom defamation there are circumstances where a defamation claim would require that that be played as well here a couple of the state tort claims have that same requirement you conten the lower court didn't address the elements of our claims st and i know that the a police remark about that in their brief but the lower court didn't address them at all in fact she dismissed solely on the basis of no penington if we're going to argue whether the elements are of our claims meet the rule twelve b six standard i would say yes and that for tortious interference there is a malice requirement and that is whether the speaker knew or was in reckless disregard for the truth we did we did claim that we also pled special damages which also is also a requirement of his trade i will claim we pled that mr bus nn and vision knew that what they were stating in that lawsuit for instance that we manufacture if we manufacture products and sold them purposely adulterated products that he knew that that  was false we also knew that that doesn't really sound in more the nature of fraud or seat for example you have one of your lan as well think they claimed in a press release that we actually committed is that there was in my question i mean i'm trying to get to really what's at the nature what's at the heart of your claims whether there is anything actually that isn't invented nature of war amounts to defamation which i generally think of is involving damage your reputation and i'm not seeing at least on the can from what are the elements if you will of the statutory violations alleged as well as the state law claims that are alleged from what is defamation what is the definition of defamation maybe that's not possible maybe there's so much overlap here that they're one and the same things i think that's probably closer to what our point is that they sound defamation clearly the elements of the lanham i claim are not identical to the elements of a trade libel claim but they all sound in defamation and the lower court dismissed on the basis that nor pennington  case i think we need to look exactly a college and then and then i'm going to ask you not only to quote the language from the press release but quote from your complaint where it was pleaded properly ok so in the exactly what statement in there is false and defend the nine count lawsuit seeks to recover at least three million dollars from sunrise pharmaceutical plus statute imposed mandatory trouble dan damages and attorney's fees but it says the nine count lawsuit seeks to recover that you're saying that's false but i think our lawsuit doesn't seek to recover at least three million from some you know i'm not saying that what you then again at least tell us what is false in here and we've asked the question few times in your reading things that now you're telling us are false so please tell us what is false and here this is you this is your burden at this point i to identify f it's true that they filed a lawsuit right it's true that the father lawsuit alleging nine counts it's false that we violated the consumer pride act the new jersey consumer product but it's false that we unfortunate that we had to file suit against sunrise pharmaceutical after numerous attempts to resolve these issues amicably those issues are stated above that violation of consumer product selling the adulterated and defective manufacture of certain drug products and then he said however the severe damages the cost to our company left this is the only option we're certainly prepared for a trial by jury in taking this case to the end for a well deserved victory that victory he's stating is to recover at least three million dollars from sunrise for violation of the consumer product i hear your honor saying does it need to be more than just we filed a lawsuit does it need to also saying course it does it we all know that the filing a lawsuit is protective but i mean what what i'm not understanding is why you are not focusing specifically for example and is it your can in the amended complaint paragraph twenty four for instance in that press release vision florida falsely states that sunrise defectively manufactured certain drug products deemed adulterated unsellable by the u s food and drug administration in that press release this is forty five in that press release vision florida falsely states that summarized willfully sold adulterated drugs to pharmacies to patient pharma also once forty six also in that press release mr  should we should we transition to me that further here one question new jersey recognizes a fairly reporting privilege separate apart from statements they're made in the course of litigation that complaint that was filed st that i believe your honor that the reporting put privilege applies to the press and even in that instance a malice standard could apply as well and also this is a press release it's not an article and it's it's drafted and issued by a private company that the fair reporting privilege doesn't apply to the press no it does apply to the press it doesn't apply to a private company showing a press release which is what we have in this instance what's your authority for that it's not it's not in our breach your honor i would have to breathe that issue and i would be happy to age it's it's pretty common putting aside the state new jersey state to a question made not only is there nothing untoward about the filing or rather the release of a press release in connection with the filing of litigation like this it's happens in the ordinary course that is all the time it does happen all the time and i apologize again for not having the case to cite to you but there is a case holding that one attorneys do it they are under the the malice standard right but not want to private party issues the press release and maybe some of these attorneys could be sued right maybe they're just not being sued but that's not why we should now decide n a press release of this nature in this setting as incidental maybe there's something i missed but that said tell us what the scope of incidental is what is incidental  petitioning to i think we can look to this court's discourse in the a d but don't case right where the court found settlement negotiations between the tobacco manufacturer relate to the suit itself well there are a few cases that discuss whether settlement negotiations are there up on appeal so says another case but in both of those both courts the rd circuit and the th circuit also referred to the are naturally intertwined with the progress or terminations of the ship itself right and they involve typically the parties in a lawsuit so with the exception of i think an incidental communication and those that happened and some of them were cited by by a colleagues and in those cases that found that's the kemeny foods case o j international air capital a b c international there was a theme in those cases they were all intellectual property cases and in there the courts found that the plaintiffs who had sued for patton infringement trademark infringement copyright infringement when they went outside extrajudicial communications they were warning potential rd parties who could also be sued for direct or contributory infringement that's the difference there that's why those courts found that it was incidental because just like create litigation letters ceas desist letters but the rd parties who are on the other end of the communications could be sued contrast that to the cases we've cited where the court said no incidental  incidental to the to the lawsuit notes include the new wants case in the district of delaware era stuff in california and riverbed and those cases they all talked about you know one instance there was a party who took the complaint gave it to the press another instance  was a party who just like here merely relayed the status status of the litigation again in the press to rd parties that were not related and those courts held that that has little relevance to the party's ability to opinion indicates that the court fairly consider the complaint and its allegations i found the visions that you vision action which is the two thousand and thirteen action that's the subject of a press release is not a sham litigation and appellants allegations to that issue conclusionary let's let's look at the press release side by side with the f d a letter to the press balance will products adults remove it for having been manufactured out of compliance with current good manufacturing practices so while i would agree the press release does not copy verbatim i re were assertions made in connection with another litigation if they were still safe and adulterated adulterated means in some instances not manufactured in compliance did you say they deemed these products adulterated on salable it's another thing for you to say they are see the distinction yes distinction between you that the pharmaceuticals were the result of defective manufacture isn't that the characterization to the f d a use that variations from what was the work required or significant violations of the current good menu fracturing practices regulations and i have never taken a volume of that to read before i went to bed that i assume that they have some considerable significance here to the quality of product yes and it's also  used characterizations could be deemed false i would be appropriate for us to affirm a dismissal yes it was done now these these statements in the press release are true stated that sunrise head willfully sold adulterated drugs here and that sometimes makes a difference does to the district court or should and does to us eventually and it may be of particular significance when your pennington is being raised is more pennington a form of immunity or is it affirmative defense  without facts to possibly support that conclusion is insufficient you raise an argument below that there is a privilege applied which privilege  news release and we did press to try to get some kind of statement of scope if not definition and i don't think we were very successful  the other side have raised this issue before the district court if for example it is correct that nor pennington is an affirmative defense and you would therefore be the party raising it as such how did you raise your penny in the context a motion to dismiss yes or when the motion to dismiss the defense that more pennington immunised this particular press release the claims defendant response was simply that pennington did not apply because of the sham litigation exception that they did not raise the additional argument that this is  it was the helen's responsibility to counter even if they had this press release still would be considered incidental under the case law that  i respectfully would disagree that essential is is is a necessary aspect of conduct in order to be considered incidental  incorporate it in the corporate work of this company they have every right to know you probably have the rather the management probably has an obligation  not in s c c case here and i don't know whether your shares are publicly traded that there may be implications under various securities laws whether they be federal or state  nonetheless i mean that sounds like an objective that furthers the interest here of the company but i'm having a hard time relating it to the lawsuit itself except that it's about the loss recites certain facts or allegations that are at issue with the loss as i mentioned one example how it could be inferred says that it may inform others who were similarly damaged by appellants contact might have similar claims possibly valuable information to share so it's not published need not petitioning that you seem like two very different things to me that is publicity that is incidental to the isn't that already sufficiently covered well outside of north pennington by the requirement of actual malice if by some issue of the public interest the public concern well i an in nature and this particular scenario here is not significantly different from that the notice the notice that it does provide by the a couple things i'm going to try to give you a better explanation for what i was trying to describe by the incidental to test and i think judge krauss really hit it on the head is it incest is it essential to the underlying litigation there's a for test in this case it's not just notice now but for test is what will the publicity affect the underlying litigation is it in further answer will it aid in prosecution  party defendants that there were warning could be sued also and in kosovo it was a was a spear over who owned the rights to oil and that to the court said those were threats you cannot buy from this individual i am the only one who owns those rights and i i also want to say this court did and we incorporated of course find that the newer pennington doctrine was a defense is a defense and not an up and immunity and in that case i think i pointed that yes yes yes i would also like to say that the lower court didn't look at the factual deficiency of these elements as appellee appears to have just stated the only element the court may have remarked on and in terms of being deficient was when we alleged verbal risk to the the defamation excuse me honors point us to where in the record it reflects that you did raise in the district court object from the incidental grounds two points on that we decided the hendricks case which talks about whether extra judicial communications are incidental to the litigation which i just cited as supporting or with reference to we started as supporting or with reference to our argument that the this extra judicial press release is not unionized under nor pennington i would also say that we haven't waived the argument we raised that if you are ever going to say we didn't use these specific words incidental to i am i can see that that is likely correct in the underlying grades but we raise the claim and on appeal one if you raise the claim you can certainly raise new arguments or new cases which we we have done here the difference between a claim and an argument right i met a little bit of a loss because i have a break this issue and i just said it so if i if you your honour's would like me to joseph was a criminal case you probably didn't come shredders was a civil case that i'm familiar with which basically tracks the reasoning of joseph so so did you raise the argument i believe we did raise the argument  and it's in the hendrix case it's all over the bench its case in fact that case looked at all i think four or five different extrajudicial communications and went through each one and this is incidental to this is not incidental to we gave that to the lower court because i mean does that help the fact that you are only at the motion to dismiss stage as opposed to summary judgment where it is probably more appropriate probably more helpful to be able to raise and decide the affirmative defense i would agree with you on that that that is the case we don't even we don't agree that the underlying was it's not a sham but we didn't we didn't raise it on appeal right nor did we agree that it should have been decided on a motion to dismiss because there are factual issues that that go to that too we raise the incidental to test because the lower court relied on one under poor decision with the capital health case which we believe was also unfair ruled on wrongly and in that case the court expressly stated that he did not have alternative authority to rule other wines and the if you look at the underlying briefs they soley focused on the new jersey litigation privilege we didn't do that we provided