herman you're here yes i am your wonderful ok mr works and we will hear your thanks thank you your honors good morning and may a please the court lower court heard when it found that the complaint fails to state a claim because the headlines of the articles t c p a class certification judgment i'm probably inclined to agree with you about that that we should construe the article together with the headline but once we construe the article together with the headline is there anything at all inaccurate in the anything in the article itself is defamatory but the headline that it's out so then why why if we are going to and i think it is appropriate at least i'll hear from the other side of course as to what new york law really is but if your position is that it's appropriate to consider the headline in the context of the article to decide that it's about you as i say that makes sense to me as an argument don't we also have to take the headline in conjunction with the article in terms of whether the headline is unfairly presenting something because you know it's an extent that your beef and i somewhat sympathetic to it is that calling this a major scheme is a bit of an exaggeration when you look at it with the whole article which you have to read before you even know who it is that he's talking about the whole article quite accurately in my view describes what judge blocks ruling was and why the judge made it and how you were disqualified in that case or your wife was ultimately found not to be an appropriate class representative that's all that's all what happened then and there may be some snark in the article but mostly the the facts that are related are all exactly what happened aren't they the the facts and the article are  there he landed in a way which can be an implication which is not true and the facts in the article seem to be supporting the headline that class certification did not exposes major spousal scheme which is not true so while the facts in the article fact is left out or what fact is slanted that it would expose one of a better word that the headline is something more d than or different than a scheme because it's not major because it didn't expose anything and it didn't expose the scheme and it wasn't it wasn't major there are a few years with the word expose know that the entire the entire headline no we're not talking about the headline we're talking about the article forget the headlines for a minute go to the article web smalltown they had to call the think th article well the headline gives off the impression that it is about the class certification denial and the headline also specifically states that it that the class certification denial exposed a major spousal scam now if you would read the article you would think there's something missing from there there's something missing are and some of which are not it is for the trier of fact and not for the court acting on the issue solely as a matter of law to determine in what sense the words were used and ok the lower court here found that the headlines were pure upping in that said the lower court also seemed to concede that the article that the articles and headlines can reasonably be construed to be stating or implying that bama torrie facts about chimps show lex luthor for example in the decision it said to be sure in some situations scheme implies that plant hinged with to put forward as a class representative someone who is a member of his family and has a financial stake in seeing that the attorney's recovery is as was not questioning the ruling by judge judge block i think i think judge black could've could have gone either way he could he could have found that my wife was getting text messages she had a problem and she went to the post in whom she's most familiar with who knew how to take care of the problem she could  brings who then brings a class action not on behalf of just of the wife but on behalf of all others similarly situated and presents his wife as someone who can fairly represent the class when there is a rather obvious conflict of interest on the part of the class representative that's what judge block found ok i mean is that so and when you say the word scheme conveys some impropriety well maybe it wasn't an intentional impropriety but i guess that's what a matter of opinion means there was something done that it seems to me judge block concluded that a lawyer should not do and maybe that was innocent on your part maybe it wasn't maybe it was a scheme maybe it wasn't but that's what it means to say that something is an opinion drawn from the facts that are laid out in the article and maybe it's an inaccurate opinion maybe the headline writer was wrong but why is why is there an implication that there is some secret fact other than here's the evidence that the headline writer thinks backs up the headline and there it is and everyone can draw their own conclusions right the headline  asking people to draw their own conclusions the headline was stating what the class certification but not all exposed and the question of whether whether their character having found an improper conflict of interest and he said that those two meanings were just as plausible as the meaning mr russell was offering which was a dishonest plan mr  argues that in doing so thorough has violated but that's all starr i did not actually select a preferred meaning and did not decide the motion based on his having selected a preferred meaning rather than a determined there were just too many choices and it was not capable of a precise and specific meaning not just those words but even the word major which he said could be  immediate context and the broad social context is it like does it signal to the readers that it's likely opinion and context is considered to be the most important  what did you know when you when you consider these words major spouses scheme they pale by comparison to the nasty words  by defamation defendants in numerous other cases in which such defamation claims were dismissed because the words were found to be expressions of opinion blackmail gab fellow traveler manipulator  the courts definitely help that you're entitled to extended liberality to create a headline drama attention grabbing on page ten of his opening brief that the headline is not you know your views that it's not a fair index of the article but he conceded that the body of the article is accurate and the nd paragraph of that article contains the phrase and i quote senior transaction a business that may be that make provide foundation personal jurisdiction you know it doesn't that doesn't work under  the entire opinion now with regard to whether this is up in concert the headline itself is of an concerning direct or he's failed to show that because should therefore await the jury's determination however judge both are was correct to hold those words are not capable of such a meaning they don't have a precise meaning to not capable of being proven true or false in context like involved in a conflict of interest that made it clear that the wife was not an adequate class representative this was just one lawyer's opinion that this was a major  i think my time is up if you have any questions i'm happy yeah sorry it is agreed that the district court did not have personal jurisdiction or never resolved the issue of person jurisdiction and never resolved the issue either and if it didn't resolve the issue did it have jurisdiction then as to that individuals to determine that there was not a cause of action you know that's not answered and i'm didn't have to reach that issue judge judge friendly a number of years ago in a case called arrowsmith vs u p i on behalf of an in bank court one of the rare occurrences of this court fairly rare occurrence is so that rematch with the case around the court ended up remanding the case for determination of personal jurisdiction st now that was a corporation not individual or a lab and three so i'm just wondering whether we need to go through that process and what your view is on that i would skip it the merit then i will seek to pursue the case against the individual and i would ask that the district court address in the st instance whether there is personal jurisdiction legal update and what's been what this article in so this was not you were for entertainment i agree the language in the in the article is slightly entertaining and you weren't but this is about a court decision and the question that this court should address is whether  this whether this headline an article accurately describes the court decision the lower court did not even address that question but this headline an article is about the court decision and it speaks to the court decision and it's factual and the question that this court should address is whether it's an address the accounts recovery dot net website which wrote an article concerning this article having read this my only question is for how long did they think they could get away with it that certainly doesn't imply that the reading by that web site was that george c article was an opinion about what the court decision said that web site that question that the web site asked is clearly showing that they interpreted it to mean that it was displaying back the i found your answer a little bit unclear and one thing that i know the law is absolutely clear on is that a defendant in a civil case may waive any lack of personal jurisdiction  your individual client well i'm not at the moment in the position of doing that because i wouldn't have mister permission well would you would you be able  to discuss with him whether that might or might not be in his interests and what his position is on that and get back to us within a day like would be able to do that i mean given mr in this case gets dismissed he would not pursue this case against mr best era well i'm not sure what his position was on the because it seemed to me  absolutely if the question could be in the event the court is prepared to affirm on the merits as your client and the objection to  you've heard the discussions so you're standing by that if the court dismisses this case on the merits you will not pursue the claim against  yes i think that's correct i think i'm going to have a serious back to the limitation problem as well so you think it's correct or yes that is correct that is yes yes yes my my position is that yes i will not pursue mr smith on the marriage thank you all a thank you we will reserve decision in this case and we will hear argument and