just before you start the clock all right basically where sometimes i try to go over their time and the person sitting at the table gets all antsy thinking like they're taking up all of my time if we're asking questions  goes over the time i still will give you your five minutes all right if we don't have any more questions i'm going to stop you at eight whether you want to stop or not so they tell have is five th they have please the court your honor we're here to address the court's ruling denying my client's anti slab motion as to the thirteenth cause of action for false light and the fourteenth cause of action for  think the judge made the correct decision in finding that these statements were made in connection with a judicial proceeding and the subject to the protections of the anti slapp statute however more  and i guess if you try cases in the press then it's part of the proceeding that isn't your better argument that it's an opinion well i'm just talking about the coverage of the anti slab and once anti slapp covers because it's in connection with a judicial proceeding then we get to the issue of whether mr stein can show that he's going to prevail on this cause of action and that's clearly where we believe the court here because what we're talking about are essentially two statements long history of being a disgruntled employee and those are clearly statements of opinion and true statements of opinion your honour's do not make a statement of fact and with respect to describe told we've cited numerous cases throughout the united states where disgruntled employee has been found to be a statement of fact and i are statement of opinion and i don't believe the judge moskowitz i disagree with us there i think where he took issue was the qualifier of a long long this that's a question of fact and your long history again if you look at the different dictionary definition of long it means not short long history could be a number of things weeks months days years and we've also cited cases such as the levy case where somebody says somebody had a history of bad reporting and saying they had a history didn't cause that to become a statement of fact and we  different a little bit different question do i own any different deference to the district court on this determination of what is a fact and what isn't i don't believe so your honor because review but even on to noble review it seems to me that one can think about a noble review as to the first issue and it seems pretty straight for the first factor then i move into the second step of the analysis and now i'm trying to determine whether it's a fact or an opinion and i'm saying to myself why do i only the district court and our our position is that whether something's a statement of fact or opinion is a question of law ok i can be independent i understand your do you have something on point on that a case yes your honor i mean i found a general overall case this seems a little bit different i don't want to waste your argument by looking through for cases the one with your argument but i i just wanted you know i thought about that yes your honor and i think that that the the would you agree with me let's just move on would you agree with me that the factors to be used in the second step of the analysis are those factors which are in lieberman that negates that impression and whether the statement in question gives of sceptical of being proved true or false yes i believe those are the things that you consider and i think that durant case that we cited is important because in and we had the same statement disgruntled former employee and warren found that that statement was not just not susceptible to objective verification and that's an issue i have is we have statements that are not susceptible to objective verification and how would we find this case your honor we're dealing with statements that are not subject to objective verification i'm not sure how we would prove or disprove a statement in front of the court  and in addition but however imparting to nude says when an author outlines the facts available to him that's clear the challenge statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusion those statements are generally protected that's correct your honor and here it was certainly a statement of opinion and that he was a formal disgruntled employee and they didn't supply the why and so he could have been a former disincarnate employee because he wasn't paid and that would be reasonable that wouldn't be something negative or he could have been a former distant just former disgruntled employee because he was a troublemaker or something like that but without saying why he was a former disgruntled employee i believe the case law outside of this circuit is pretty clear that that's an opinion and then we also cited the grillo case in california which found that the word angry is a statement of  preying upon elderly tenants with fixed incomes being a greedy probably driven company that enjoys forcing the elderly out of their homes engaging in rent gouging at it's worst i think in cases how is that different from a disgruntled employee right i think that you're supplying you're supplying objectively verifiable facts in that context whereas here there are no facts supplied it's just former disgruntled employees implying any provable fact so unless you have a context of other things that would be provable i think the law is by itself this in the way that this was stated by our client is not act i just i'm keeping track of this time why is that not hyperbole why is what he said hyperbole in the manufacturer's home case no in your case it reads like hyperbole i don't i don't believe it is hyperbole your honor i believe it's a statement of opinion where they're trying to explain why the case doesn't have those employees eat well right he's it's a disgruntled employee but again the  the partial summary judgment as to who's qualified immunity privilege and then the other appeal deals with as mr tobin indicated the anti slap or less the court has a preference all go ahead and begin with the anti slapp motion just wanted to address one of the issue other than the reporter's privilege ok the issue being that if the statement is subject to the anti slapp statute then the burden shifts to mr stein to prove that he has some probability of prevailing but we know that in this context there is no evidence in the record that mr stein i'm sorry that mr anderson uttered the statement or had anything to do with the state of the statement attributed to david bennett and tri city and there is absolutely nothing in the record except for the fact that the district court hinged itself on the fact that mr anderson had a prior working relationship with mr anderson and that knowledge somehow was imputed to try city but there's no evidence in the record that he authored suggested recommended directed immunity i'll switch them off and the district court i think properly held that the actions of mr stein reasonably could be interpreted as a resignation and getting up abruptly him leaving the meeting him packing up his belongings and saying he was done the district court seemed to take issue with the fact that after mr anderson accepted the resignation dan stein then challenge the resignation mr anderson's response to that was turning it over the legal department and i don't think that that that action somehow suggested he acted on reasonably or with some sort of intent to deprive mr stein of his due process rights ok we have to give all inferences that mr stein makes an order on a summ judgment because you're maybe against him doesn't he allege something to be a fact that that mr anderson was involved in the process once it turned it was turned over to evidence it's just how we get the evidence if you assert turning client privilege that's true except again tri city asserted the privilege it's their privilege that that information is going to come out at some other time and the question i think goes back to objectively did mr anderson act unreasonably to deny himself the qualified privilege by working with the legal department the evidence shows he's working with the legal department as soon as dan stein challenges his rights resignation he's obviously concerned direct mr stein to go to the legal department i don't see how that is an unreasonable action that such an emotion mr stein step or evasion of his due process rights you my report you might respond to the reporter's privilege but i think you have brought up the reporter's privilege because it sounded like the court may have had a question on that if you want to direct it well that it doesn't qualify yeah that's a question i'd like to start with the question that judge smith asked about the deference to the trial court in this particular matter on the anti slab that that was an interesting question and i think the answer to that question is or implies a provably false assertion of fact and it seems to me that judge moscowitz in deciding this particular any slap is the reasonable fact finder who's making  determination that yes the statement that mr stein had a long history of being a disgruntled employee implies that there was a series of complaints made over a long period of time so as a reasonable finder of fact and i think that a mosque which is reasonable there should be some deference made to that under the test built into the defamation standard did you  appreciate your comment thank you donna going on to the question isn't necessarily what's a fact or it's in pain and again the test is whether the statement disclose false assertion and this case the statement that the employer was disgruntled for a long history implies that there was a at least multiple complaints made to the employer over a long period of time and that period of time implied implies a long period of time probably for the duration of the employment if not even further back because the two employees worked with each other prior to try city so it also implies that the employer's response to such complaints was lawful or they had lawful policies so whether the complaint was made or not is easily provable provable because the question can be asked a deposition or a trial did mr stein complain about any of the i'm not sure i understand you think it implies the supposing the statement had been  mr jones is a difficult person and has a history of being difficult that wouldn't mean there had to be complaints filed that would mean there had to be responses that were lawful to the complaints that we just mean the people had observed from time to time that he was not the easiest person to get along with or something like means that he's made a series of complaints it's not just that that people don't get along with him it's that he was disgruntled he was complaining about the practices of the employer and why would we want to hire someone who is constantly complaining about reasonable lawful practices of the dictionary definition of describe those i'm not sure exactly what the dictionary definition of the scrabble but that's not where we would start that would be a good place to start your  and i don't know of any dictionary i can't say i canvassed the mall but i don't know of any answers disgruntled means a long history of filing complaints to which the employer begs lawful responses i think that is what did were disgruntled in long history what it implies and were allowed to have the implication is that there was a series of complaints over a long period of time made to the employer and whether that's provably false or not is is permissible in this situation because again you can ask employees the question did mr stein make complaints in the past and they can answer yes or no and i believe even though it's outside the record of the he end believe him in the qualified immunity there was some deposition testimony to that extent did you ever hear him points so i think that's a provably true or false statement let me ask you a hypothetical question we have a conference on this so it's just a purely hypothetical question if if we were to include that this is an opinion and so therefore the court was wrong on the and i slap it and that they would be likely to prevail that the guy had a right to have his opinion so then yes well and but then all right and if so then those charges are gone but on the qualified immunity who was you still have left in the lawsuit  there has because of the anti slapp situation and five situation ok so i hope i've answered all of the judge's questions on the any slop issue you know and i can take some time and move on to the qualified immunity if the leaving it's his words because he was very frustrated in that meeting and wasn't that he was leaving the company altogether he was leaving the meeting and then he sends an e mail i didn't know there's a little more contact he took all his pictures right now i didn't take all his pictures he didn't take some stuff out of the office took a few personal items of the office including some diplomas but he didn't take everything so he took some personal id say anything to make any comment there i've had it or whatever he told well he said first he sent an e mail well just better before he said the e mail for it got out seems to me the record says he told a staff member he was done yes and he explained it it's far as i can recall that they didn't explain it to the staff member right he may have tried to explain that they're after but so he he was in the meeting the senate yells at him he says he's leaving he went to his office he collected some things that's a new his deposition is in the records and it's very specific well i understand that's why i tried to make sure i got the facts because one of the things is if you told everybody i'm leaving you went to your office  elected things and you told a staff member you were done and went home and then once home calling the director employer held services that asking for medical leave form is that enough to prevent you from getting the qualified immunity that's the question yes yes and what he did was when he went to his office he said he only took a few things he was worried that they there were certain things that may disappear if he was out on a short leave so we took those with him and he took a fan and some diplomats that were stacked up they were not hanging on the wall or anything like that and he took his home for his personal property and then then whether the telephone call to h r came before or after he walked out of the building i don't think is particularly important terms of the qualified immunity because it shows that his intense was and the light most favorable to mr stein is that his intent was that he was seeking a medical leave and the e mail that he sent has the subject line if i recall correctly at eleven o two or whenever it was you know immediate stress leave you know he wanted the forms to go on and on that medical stress leave that was known to mr anderson after that all anderson did was turn it over to legal so what about that well he did more than that because he sent the letter on the second he sent emails on the third turned off and had knowledge of what was going on and imputed that knowledge is imputed to the imputed to the company but he knew it was going on in and he didn't stop it so when you take all those facts together i think it shows  mystery what do i do with the idea that he e mailed anderson prior to the meeting and just wanted to discuss a severance package i believe your honor that was sometimes for that happens well right for that meeting but if i can anderson if someone's ask you about a severance package and then you get up in the middle of a meeting and say i'm leaving and then you collect your goodson and go and tell people i'm done you know i mean i must people don't talk about a severance package with someone unless they have some content out there contemplating leaving well mr stein well in early two thousand and twelve anderson b b n making derogatory remarks that's in your breast that's putting the facts in your favor our regarding stein reduced his role of christ city by refusing to meet with him and he gives legal advice undermined his authority and instructed him to withhold information from the board of directors that's your idea of a good time as i understand it there after stein emailed anderson  fifty eight fifty nine asking to discuss his severance package since andersen was preventing him from performing is obligation to report directly to the board then and there after stein says the second part stein's i b s continued and thereafter rather that he requests an accommodation or to go part time which anderson refused i would point that your honor to the deposition testimony of fifty eight fifty nine of the f d r because mr stein that are you asking mr anderson to negotiate a severance in january of two thousand and twelve with you and he says no i think the point of that is to let him know that if i'm going to serve out the compliance officer of city that zero idea of the federal sentencing guidelines replied that there is a direct and open line of communication with the board and that was not occurring and it needed to occur and i wanted her question and you also wanted different staff to answer  that wasn't going to happen and if they not comply with the rules and the law in their duties all right understand the answer anything further from the court what do you say to the facts in the record to suggest that andersen didn't have any part in making that statement in the first place i don't it's a disgruntled employees statement was made by andersen and he suggests andersen didn't have any part in making it didn't have any part of it and therefore there's no way he could be responsible that's his argument i was down i think there's two things the comment is in regard to the question from the comment it was on behalf of mr aniston and tri city or did that word of the press say that i didn't read that and well this guy was asked to come in and i don't even know that he said i represent tri cities and this is why i think he said what he said about being a disgruntled employee and all i got to say is i read the evidence to try to find out whether andersen could be linked to that and i can't find it well the question from the reporter was what was the comment on the the court's ruling the court cases and obviously involves both defendants so the comment coming from mr bennett appears to be on behalf of both of the defen anatolian as they see this is the problem i have if i have a law clerk out there tarn for me and he makes a political statement i'm not going to be very happy about it i didn't authorize him to do it there's no reason for him to have done it he's stupid for of done it and but how does that bind me if if if if if it's talking about the case because mr anderson also has the ability to retract that statement if he didn't want to imply to him so i well i was just looking for what evidence correctly we could find which would link to here and i tried to go through what you suggested was the link and i couldn't find it and so i was just asking you i think i think that's the the answer your honor is that it ok all right thank you for your argument thank you giving deference to the trial court the case i was trying to cite is the cop case which is in our in our brief and then with respect to what mr stein is saying about reading in all of these things into the term disgruntled like he's a complainer and all that that's not there and it's like what i said before the because of the why he was disgruntled was not supplied not supplied and when you go back and look at the cases they say that former disgruntled employee does not imply a provable statement of  fact and then in addition when he's saying well it's out in google and people can see it even though these are statements of opinion if you read mr stein's own complaint he said that over a period of time he was angry and he was disappointed so he's already put something out there in the public indicating that he thinks he was disgruntled even though it's an opinion or or a statement of fact and there was one comment on the litigation privilege and i would just say i don't think we get there because this is not actionable so opinion but i don't think this is really getting in the press i think if you read the well case this week these were narrow comments about allegations in the lawsuit and the welsh case found that even though you don't litigate  entire statement issued in response to the inquiry by the press in and says in the reference assertion the court simply holds this doesn't hold that all that's fits what you're talking about but then they say further have seemingly unrelated to the lawsuit or or certainly to reporting on what has occurred mr stein is a disgruntled former employee it was a long history of being a disgruntled employee i think it's all part of the state in your i reply it's offering an explanation as to why the lawsuit doesn't have merit and it's offering an explanation as to why mr stein would bring an other opposed to just leaving it the lawsuit has no merit without further explanation and i think that the litigant should be able to explain their position on the pleadings as opposed to worrying about certain statements in the same context triggering liability because if the litigant didn't have that freedom i think that people would no longer comment or be able to have their side heard in response to press inquiries this wasn't something that we actively sought out like in the rotman or those cases we were responding we knew an article was being printed and we should have had a right to respond so if that's true then it's it's the response is the response on behalf of both defendants yes but i'm looking at tri if i'm just asking if it is what you just described then this is a statement being made on behalf of both defendants yes well might my client  i want to respond to things that mr stein's counsel raised first that mr anderson knew that dan stein only took a few of his belongings i don't think that's accurate the record reflects that after mr stein left took his belongings alison borken home called the legal department checked in was told that he had taken his things which i think substantiates mr anderson's belief that he had resigned the second being that mr anderson was aware of dan's times requests for medical leave documentation that e mail was sent to rudy gaskill who mr anderson was not on that e mail and there's no evidence is just that he was provided information that medical leave documents were requested so that's all i have you right thank you this matter will stand submitted