i think we're ready to start with the st case which is conceiving york times company asonable reader reading the article in question could have you know would have concluded would have inferred this although everyone agrees that it doesn't state so explicitly but would have inferred or understood that the reference to the roman declaration meant that the declaration was in fact filed in the rodrigo's cos case when this case is viewed from the perspective which in our view has the view from which is this is in the context of the motion to dismiss basic principles are applied here it's our view that that conclusion which is reached as a matter of law by the district court simply is not reconcilable with the article itself and we went for a as we started out of our boat over briefs and also below we went through a detailed parsing of the article much more so frankly than the times did to try to demonstrate that no reasonable reader examining this article would or could have concluded that that the investigation in the complaint process is tempered utilized in the appeal of it is dickens's personnel action or most fundamentally no nowhere at all because declarations are are developed and signed and utilized in all kinds of non litigat context and the article never says where if anywhere the declaration was filed and hence based on all the cases we cited cited adelson and a whole variety of others it's our view that the act at least in the context of a motion to dismiss just cannot apply and so then turning very quickly if i could to the question of choice of law we think the condit case essentially says what needs to be said with respect to choice of law everyone both parties agree in this case that new york's interest applies in terms of which jurisdiction law should be utilized in this case we all agree that the act in question is conduct regulating or rather the doctor in question his conduct regulating and so you know looking at the  case just makes it as clear as it could be from our standpoint i mean the condit case really in most respects of virtually all respects is on for on all fours with the facts and we have here there as here the  the communication the you know the defamatory content emanated from new york from a new york media outlet similar arguments were made in condit to the effect that you know that the new york has a particular policy interest with respect to protecting its media outlets from unwarranted defamation actions and in condit the most critical factor in that the fact that the times in our view doesn't doesn't correctly construe is that what was that issue in condit in the reason that ultimately in elsa's meant that california law would apply in that case that was not because and this is probably the most single critical thing here is it was not because of condit's domicile which was in in talking about the judicial proceeding privilege that that privilege could lose its force if we didn't look to the law of the local state and in applied the place of injury and that and why wouldn't that analysis reach the same result in this case where an different privilege applies but a privilege well i mean there's no doubt in our minds that there is some interest that new york has in you know in applying its own privileges and certainly applying the fair report act as codified in new york state law we're not suggesting for a minute that there is no interest there but when one takes you know all the relevant interests as a whole and factors them you know one against the case right you're correct your honor so it's not binding on some of it may be persuasive it may be interesting it may be helpful and we may agree with it but we're not bound by that right that is right and you're not bound by it and it is a district court case but of course it invokes you know a great deal of the law that this court has handed down over a good number of years and we think you know just as your honor just said we think it's highly persuasive and we think that kind of parses that walker actually i mean here and th is another another question that you said everyone agrees to conduct regulating rule and i would have thought and i certainly acknowledge this is a rather naive perception and maybe not the way the cases interpret it but wouldn't the conduct regulating rule look to the place where the conduct occurs well it's i think the key question here is just sort of where does the conduct to the law of pennsylvania to decide whether the person was speeding or not it would be ridiculous to say well it would have been speeding back in new york or something like that but so if the idea is to tell people what they should look to to decide what to do and it seems to me the people who are deciding what to do here are the editors and publishers of the new york times deciding whether it's you know what privilege they have over whether they could expose themselves to liability so why why shouldn't they be able to look to the law of their jurisdiction to govern their conduct because your honor there is a critical distinction that's drawn in the cases and i don't just mean condit here i believe it's drawn in adults in case in a variety of other cases between for example an automobile case versus a defamation case in which the defamatory content was disseminated that the locus standi here you know i mean no one disagrees with the proposition that the content of the new york times is disseminated nationally and in our view most particularly disseminated in the district of columbia because what it what it says if it went to the new york times do then when a reporter says here's my article and they're deciding whether to publish and what their risks are look to the jurisdiction with the that has any conceivable relevance that has the least  generous privilege well i don't know in the abstract i understand precisely i think your honors point but i mean as in practical terms you know the rules here are are largely the same i mean there is a qualif under you know the fairport doctrine in the district of columbia and there is an absolute privilege or at least arguably an absolute privilege in new york but either way i mean all the new york times had to do here was to you know explicitly tie the document in question that contains a defamatory information to the official to the underlying official proceeding that would have been signed in both jurisdictions and in fact in every jurisdiction ok does that mightily not finally mr cover this would be my last question and it but i'm not i don't know if we have cases quite like hypothetical i'm going to offer and let me ask you what you think about it suppose a reporter writes an article saying that a hollywood producer has been sued in multiple courts by multiple employees alleging sexual harassment and says in one of them the plaintiff alleges that he did x y z accurately quoting the complaint in that case and in another witness testified that she saw him do a b c again accurately quoting testimony the witness gave you saying that's not within the privilege because the reporter did not identify the specific name of the case in each instance absolutely not so long if i understood your honor's hypothetical correctly it sounds like witness testified x y z but doesn't say which declaration or which witness witness then testimony or which allegation came from which case i forgive me for misunderstanding initially but my answer is st of all that's a much closer question and secondly no i don't think the same argument would apply given your honour's hypothetical and it's for the following reason under either scenario in other words without knowing precisely which of the two complaints you know the particular allegation in question related to there is no ambiguity about the proposition that relates to one complaint or the other here we don't have that well i think it is the issue that we don't have is that it might not be in a court case at all not a question of which court case it's in well i think it's both actually i mean i don't i'm without quibbling in terms of you know whether or not that long you know list of other proceedings that are referencing the article all qualify as a as official proceedings i mean if it were if you could if you knew for a fact that the declaration had been filed in one official proceeding or another i think that would be a somewhat closer question than the one we have now but it's an absolutely critical fact from our standpoint that a declaration doesn't have to be filed anywhere it doesn't have to be part of any official proceedings absolutely no requirement the times could of could have asked the woman for his for a declaration itself or anyone else jurisdiction in which the action is one of several factors to be considered by a court trying to determine the applicable substance right it is to be considered your honor but we as we understand the cases it's a relatively minor factor and typically not dispositive as it was not in kind though i understand that but it is one of the facts if i can't i can't tell your honor that it's that's utterly irrelevant but it seems like a relatively minor one as interest analysis typically is applied and maybe maybe my next question is irrelevant or not particularly interesting but let me ask you you could have brought this why did you bring this action in maryland of the poem now i think it's a very interesting question and i appreciate your honor opposing it and the reason is because i mean we we made what we follow is a pretty careful study of you know the all the underlying doctrines the fair report act and in particular the way you know public officials you know in other words whether or not the malice requirement applies in the context of new york times the sullivan and so on and we look at that in all three of those that your honor just referenced and when we when we parse all those factors and try to figure out where you know the the points of risk might be in terms of being strung out on a motion to dismiss or on summary judgment we concluded that the law was best developed on the way that those factors should be considered and waited and that is that state with most significant interest in the specific issue which in this case is the consequence of conflict is the fa importantly the policy interests at stake here and those policy interests the court noted in the context of defamation carry special weight that new york has a strong interest in regulating the conduct of the press who are any difference at all where there the reporting took place i mean should we just look to new york because the publisher has to make a decision in weighing the the economy the privilege factor and the policies behind  in some clarity to the actor as to how is he or she should behave is it just a relevant where the investigative work itself to play i wouldn't go so far your honor to say it's irrelevant you know there based in new york ms green this is judge lynch the choice of law issue is fascinating in part because interest analysis is notoriously malleable and one can argue for almost anything i suppose i certainly understand the argument that a reasonable reader might well attribute this declaration to the rodriguez's lawsuit that so i read the article myself but i'm fairly sophisticated both about law and about the the privilege fails if there is no connection to an investigation or documents or records or if it would be impossible for an average reader to make that connection so what's your basis what's your best case for the think that the cummings case is perhaps the most robust application of the fair report privilege where they emphasize that it should be viewed in the context of the reporting as a whole that is under their law we have to decide which but is there any is there any governing authority or are we are we more or less free to read these various opinions of learned district judges  report or official proceeding was being was being described so again whether it's d c or new york law the very liberal standard woman declaration was patently unreliable and missed then or should have investigated it and and apparently suggest that there would have been contrary information because the woman declaration has a  judge lynch's question to the effect that in the in the pleading stage in the context of a motion to dismiss and evaluating an affirmative defense that any reasonable reader must have attributed to the rodrigo's cause case the document in question i think that's what the law says and i citation to the documents sufficiently verbatim you know those are the areas in which the fair report the fair report act which airport doctrine you know quite properly are viewed you know broadly and that you know the times or other other journalistic entities are not held to some sort of a verbatim standard but here i get you know i'm not sure why and i guess i'm not seeing the i think there's a pretty close connection when i look at this article to tell me what i'm missing i mean is the senate  t least some paragraphs away from where the woman declaration is st alluded to but you've got a paragraph that identifies the connecticut suit topics in it for the next paragraph seven men and women from the unit  declarations that her support and then there is a reference to the woman declaration later in the article when it reasonable reader assumes that this is one of the seven declaration i don't think so your honor i mean what you have basically and we at this in the overall context and not perhaps word by word if you want to do word by word what do you make of the word his that is to say the sentence about a woman says in his declaration which presumes that this  declaration that some have been referred to earlier or at least that is being contrasted with other people's declarations why would anyone think that this is a declaration for example as you suggested that mr woman liberated is the word declaration used in the article in reference to any other lawsuit or any other proceeding or any other of the many byways that the article goes through in attempting to corroborate or confirm or deny some of the allegations that are made in other declarations and rodriguez class you know you're on i don't think it is but that from our standpoint that's a no way determinative of the outcome here because you know declarations despite the fact  you know despite our can the concession i just made in terms of the word declaration the fact that the fact of the matter is that any declaration can be filed in any action or no action and the article refers to you know at least like a half a dozen different pieces of litigation in which it could have been filed and it could have been filed nowhere i mean there i was reading my home but i gather it refers to other little others proceedings but the only conference in which it uses declarations is in connection with this one lawsuit so far as i could tell well that could very well be your honor and i probably can't read the whole thing carefully enough right now to give you a definitive answer to that question but i've taken your honor's point i mean the fact that you know the article uses the word declaration you know kind of the only let's say it let's let's say it only uses it in the context to refer to real rodrigo's cause that in no way excludes you know the very reasonable possibility that it was filed in one of one  other contested matters that are listed in the article or know where i mean and given that fact and i think it's an interim testable fact i just don't see how you know certainly the policy interest underlying the fair report or as you know the verbatim act itself or the way it's been interpreted in the litany of cases we refer to could possibly immunize that reference because you know look i mean to take judge lynch's point in response to one of his questions to the times is counsel you know certainly i mean you know one might read the article and say there's like a reasonable possibility it was filed in rodrigo's cross because like you know like like you said i mean you know refers to other declarations it's a reasonable possibility but it's also a reasonable possibility was found anywhere else or nowhere else and so given that possibility and the fact that the times there was nothing in the article to extinguish it in particular there was a reference to the image  there it's a it's a partial image that shows no file stamp or anything like that it's just an image of you know like the particular sentence in question i mean that that doesn't confer absolute immunity in the context of a motion to dismiss evaluating an affirmative defense that is just too close to in big us for the court to you know throw the case out at the pleading stage based on that doctrine in our view and the other the other point i would make  term i might have remaining if i may is just that with respect to the nd issue the issue of choice of law you know there are just a litany of factors and most importantly we as a plaintiff suffered the greatest injury is the one which is i mean of course i admit it's it's just persuasive authority but it is very persuasively and eloquently articulated in condit you know talking about the fact that he's a california representative you know his office is in california d the electorate that he represents is in california that is