good morning ladies and gentleman as as you know we have had a little bit of trouble getting george roden or piped into the court but she's now here welcome and we can start with our calendar of cases our first is daniel's against stoner and cameron sting this case revolves around two straightforward propositions first that an invitation to transact is neither a newsworthy statement nor a report on a matter of public or general interest under subsections c three and c one b of section one of the indiana right of publicity statute and second the illegal speech as per se excluded under indiana law from the scope of the protections conferred under those two statutory provisions i will address each of these points in turn this morning first the c three statutory exception embedded in this exception is the term  in part that is true i think what but the parties have done here is drawn on those available source of indiana law and considering these provisions there are federal cases we believe appellate certainly believe that our persuasive on these points  terms relating news reporting there very soon not the leader of this california bar rules indiana well you judge we understand your point but in fact you almost would think that the state of indiana would do the opposite of whatever california do well and this is this your honor we do have the benefit of having a california statute that with very similar terms and cases with similar facts and have seen the ninth circuit find in favor of plaintiffs  honor we believe that and that this was argued by the defendants below as well that the statutory exceptions here the language there of appear to reflect a clear effort by the indiana legislators to make sure that the statute itself  was coach terminus with certain protections available to speakers of the first not a preexisting statute on the illegality playwright or indeed the courts have been clear and we cited to several cases in this regard that illegal speech is in fact per se excluded from the scope of statutory provisions under indiana law unless the legislature within the body of the stache itself provides that illegal speech is included within the scope of the century provision we cited to the seaford case the green case and the rock  green add the c the indian a supreme court in the green case cited to the clarke united states supreme court decision of nine hundred thirty three and the holding of clarke was that when it comes to a speech privilege that privilege exists and survives until there is an abuse and vanishes when the abuse is shown to the satisfaction the judge so the green court  brief and the rock a court summarized in that case and this is a page nine of our five brief that where the issue in that case was whether the speaker had an entitlement to a privilege under statute conferring that privilege to the patients of mental health treatment centers that although the speaker relies on authority which states the legislature determines public policy to the neck of the statutes rocca maintains that even if common law would have shielded southern hills before the neck of the mental health records that should the legislature remove the shield with the passage of the statute an abrogation mcconnell would be applied where a statute as an act of which undertakes to cover the entire subject for many years this court is recognize those principles of public policy which justify the existence above exception of this physician patient privilege despite the absence of any exception language in the statute and the court were not to hold public policy supports the recognition of an exception of the physician patient privilege despite the absence of language that effect in the statute  the exception exists where the communications were made for an unlawful purpose the objective of which is the commission of a crime and thus the rock a court faced with very similar tracks to this case your honor noted that it had been argued in the case that the absence of language in the statute directed to the issue of illegal speech should defeat the notion that illegal speech fell outside the scope of the statute and instead the rock a court held no the opposite presumption is true unless the idea t legislature steps forward and states affirmatively that illegal speech is included within the shield it's outside of that ship and your honor i think in this regard a imperfect but somewhat helpful analogy might be the implied covenant of good faith and fair dealing in all contracts in court's time and again when they're faced with this question under statutes have held that illegal speech is outside the scope of the speech protection conferred of the statute and we've cited four cases in this regard your honor and there is no there's no precedent th cited of any case where legal speech has fall within the scope of the speech production in the statute so in that regard your honor we've referred you to the rocket case the services case and the other cases and if i may though i'd like to return just back to the plain language of the stature exceptions being claim i think the court can see here that these invitations to transact by placing price tags on the plaintiffs on their on their identities on the their persons and on their bodies falls well outside the scope of the these exceptions under see three are reporting is required by the speaker i hear no say council i don't understand the significance of the fact that the six website uses the word dollars rather than say the word wa poose because it's just monopoly money it doesn't have anything to do with financial transactions your honor we respectfully disagree and quite strongly  have included a page thirty of our opening brief a chart which demonstrates that there is no daylight between the as you use the term art of artificial dollar figures under these fantasy sellers and actual dollars and cents put a quote unquote fantasy salary and mr stanley for the week of december first two thousand and fourteen of forty eight hundred dollars because trackings had a salary cap of fifty thousand dollars for their players if a if a dry if a draft kings customer paid fifty dollars as an entry fee to gamble on the drafting site that that same user paid four dollars in a sense for mr sting it's a wonder one relationship there's no daylight or i don't understand why it matters that it's denominated in dollars in the way in which any fantasy league works is to produce some scarcity otherwise everybody picks all the best players right you have to create scar what relevance to actual money i just don't understand the point will judge what drafting to do is they would tell their players that for a fifty dollars entry fee they could allocate those fifty dollars across the scope of nine players and those players were assigned salaries which are price tags so for cameras thing only to be forty eight hundred dollars fantasy salary that equates directly to four dollars eighty cents of the players money allocated to  when i think the answer to that question is yes or no and then you can explain why your hundreds of them to turn quite lose would not matter we were putting forth a judge that for any user of the drafting site that puts down fifty dollars of the real us cash currency to compete in a given week and a contest they then have to allocate the fifty dollars across the book these players they have a salary cap so the chart that we had on page thirty shows that for a four thousand eight hundred dollars salar that equates exactly to four dollars eighty sent us dollars real world currency price and what we're what we're saying judge is a statement by jus osco that orange is our i'm think you would be better served by devoting what's left of your limited time to discussing the actual language of the state statutes your honor certainly we have here under this reporting prof prong of c three a requirement that the speaker be reporting on a subject matter of general public interest drafting sculls itself a casino this is alleged in the complaint and cited at paragraph forty six of the amount of complaint a casino is not a news media entity statement on the reporting a matter of general public interest here's casino is talking about its own private gambling operations we also know more over yonder that the users of both of these defendants websites were not going to those websites to gather information about statistics in the like they were there to gamble that the purpose of the websites is to allow the users to gamble on the college athletes and here we have all three of our plaintiffs having received price tags from these defendants without their consent judged under back to the price tags business just loses we want to just stick with the language in the statute well judging or judge the district judge said one can turn to these sites to get information about the players staff and i take it that you agree that their statistics are in fact newsworthy they reported in the newspapers that reported on e s p n i gather without challenge f well your honor there's there's nothing in the record below on that used by the defense of statistics with respect to plaintiff nicholas stone or all that we know in the record below is that they signed a price tag to his had there's not one iota of evidence that they ever discussed his laurels ikes i think if you depends on the argument that they have signed a price tag you've just dug yourself a hole from which you cannot escape because that has absolutely nothing to do with the language of the statue we are let me see if i can it square the circle for you in that regard the jordan i don't know why you want to say that because in geometry that is impossible that's why squaring the circle is a phrase it's  phrase for something that cannot be accomplished then not if you would like to do something else then let me connect the dots your honor but may connect the dots the jordan case involved the placement by two osco of michael jordan's name an image on the same page as the joss of the logo this court held that that mere placement on the same page of an advertisement conferred valuable brand and handsome benefits joske in this case it goes much further these plaintiffs mr stingley mr daniels mr stone or are the actual products being offered by the defendants will look you really want to talk about the language mister because now it sounds like you're saying that it would violate indiana law to discuss these discuss and i presume the indianapolis star can't discuss them because that's a newspaper run to the for the purpose of making money and so on your honor the c three privilege statutory provision claim by the of this case requires that the pelleas own material have newsworthy value not just that the players be newsworthy in some respect because they're in the public eye they play college sports but they're material that is why when we look at that point of stone there is no indication that his to just sit we're discussing the fan site there's nothing in the record what we would say to your honor is that when you have a product if you have coca cola offering its bottles in the state of indiana if they put m these plaintiffs themselves are the product they're being offered mr stingley was referred to as being available at a cheap price by to buy draftees cheap in reference to what cheap in reference to the price offered on mr stanley by their competitor  these two companies were competing with one another in the offering of these athletes on their website and so thus we think that both defendants speech in this case falls well outside the c three exception because the material that the defendants produce must have itself have newsworthy value and an invitation to transact whether is putting a price in a bag of oranges by jewel a naked invitation to transact does not have that newsworthy value and we believe the jordan case stand squarely for this problem we also would like to point direct the court's attention to this court's baltimore orioles decision from one thousand nine hundred six in that case this court affirmed that a company quote a company without the consent of a player using the player's name to ever ties its product end quote gives right to a violation of the player's right of publicity in that case the product that was being advertised that the seventh circuit this court was considering was a game court based on the player's career statistics and quote and baltimore orioles was affirmed by tony in two thousand thus we believe that there's a wide body of case law in this court consistent with both of dual jabar and keller consistent with a wide mass of precedent concerning what gives rise to an athlete's violation of an athlete's right of publicity that honor that is an important question and the answer is no and so the only reason that users would go into the draft kinds of vandal sites was to gamble it was not to buy information about these athletes the transaction was put money down for the user that mr stingless pricing during the week of december first two thousand and fourteen on the exterior portion of its site that was the forty eight hundred dollar reference that i made earlier that that would be comparably speaking a rarity they do are they do advertise certain individual players if they're seeking to hype that player for that week on the exterior portion their site if they want to do some more per more gambling dollar more gambling dollars being deposited there pools so such that we know in this case your honor let me give you an example if you compare paragraph sixty two and ninety four of the amended complaint fan duel had a different price at their offering and plaintiff nicholas the owner from what draft kings offered draft kings price a nickel a stoner was three dollars forty cents vandals price was three dollars seventy five cents because what happens is draft kings has a salary cap of fifty thousand fanjul has a salary cap of sixty thousand and because they're both putting different prices the submitting their subjective value judgments about whether perhaps they want to recruit more university indiana student gambling customers it was actually possible within the terms of this case to point out to the panel for eight those eighteen and older walking around college decision below was correct and squarely in line with the right of publicity cases like c b c from the eighth circuit and like c b s interactive or any of these from the supreme court of indiana so none of those cases are from this we're not trying to decide this under some other state's law but under indiana school that's correct your honor and that that bugs me i must say that we when we see the cases in which the federal courts are completely at sea in the sense there are no sign posts from the state judiciary i'm inclined to think that we should perhaps certify this to the state court and get an authentic reading of state law rather than trying to guess so your honor certainly the court has the power to that it's unnecessary here for a couple of reasons first of all although you are absolutely correct it's a matter of indiana state law the exemptions that are in the indiana statute are actually quite similar particularly on the reporting  rigs in existence in other states like california and minnesota and texas so for example when the court in dryer your honor evaluated the case the court dealt with the newsworthiness exception and it dealt with it as a newsworthiness exception that's not what it says the question is not whether an athlete statistics are newsworthy the question is whether it appears and i quote in material that has little or newsworthy value so the question is is the fan duel fantasy game itself newsworthy and i will confess to you that i've never seen e s p n report on whether joe smith be jim green on fandom so you know that's not ever reported so your honor i think a couple of responses that you're ours is absolutely to focus on the statutory language but the question is whether the use of the name is in material that has newsworthy value we think the answer to that is yes and it's yes in two senses first the statistics themselves are newsworthy and that is material that is that has newsworthy value that's what the statute says it's the use of the name immaterial actually that there is a dispute in dissent so let me try to explain if i could why we think this has by what by why both the information and the game itself has newsworthy value the information the statistics would just offer it statistics it would be used in a right yes but that's not the only way in which it's used that's what bugs me so can i give you that to respond to two reasons why i think even taking your honour's construct why we easily satisfied first the game itself integrates the statistics and this is in an in an important way the user's entire interaction with the game is through and and using the statistics you look at the statistics to assemble your virtual roster you project how the athletes performances are going to affect your team once your team is assembled you look at the real up to the minute statistics on the website to see how the team is doing and to see how you are doing against the other users and the next morning you evaluate the systems excuse me the statistics to see how your team did but if i could make a second point which i think is critical the interaction interactive nature of the game itself is newsworthy and helps contribute to the understanding of the statistics let me give you want an allergy and then circle back on the new york times website there's a there's an interactive way to try to balance the budget and what it teaches you is that if you lower defense spending you have to raise and title minutes or if you want to pay for into infrastructure you have to reduce foreign aid and the interactive nature of that site is itself educational and informative draft kings and e s p n and c b s do that same thing they put you in the position of a general manager making tradeoffs on the kind of salaries that that your honor was discussing earlier with mr holmes they they they give you jabbar and jordan stand for but this is a million miles from that if i could i think actually the proposition that the court should accept to decide this case is really the opposite that newsworthy information doesn't lose its newsworthiness by being incorporated into a game what the courts have said over and over is the line between informing and entertaining is elusive and we think here it disappears entirely statistics and newsworthy information don't lose their value by being incorporated into a game like trivial information statistic it brought into trivial pursuit or to jeopardy or to a news quiz like wait wait don't tell me it doesn't then lose it's it's newsworthy value just by being prodded into a situation or anything you  publicity means that that in football has a for the people whose data it uses so you're out of the keller case did decide there was a dissent in that case but i think critically for the present purposes the answer to your to that to your honest question is the color case itself distinguishes these statistics what keller says is the difference between the e a game that your honor is discussing and the site here is that the knights are to pose the test is there a means for obtaining information does about real world football games and what the ninth circuit majority held judge by his opinion was the answer for that in the context in the madden context was no but he specifically distinguished the the fantasy sites that we have here those are means for publishing reporting factual data and a means critically means for obtaining information about real world football games so that's the test that the ninth circuit applied that's the test that the court then used in the dryer case and no doubt i can't dispute the court's authority to to ask indiana for questions but i actually think this is the kind of legal question you know scott walker i completely understand your position in your client's interest is that the sequence you prefer is when  and i'm perfectly sure that your opponent has exactly the same preferred sequence or if your honor so i guess i just to be clear i think we do think the indiana i think the indiana courts would go our way but the reason i again just to repeat that i don't think you need to certify is these are the kinds of questions that the federal courts are due citing all of the time this is the question that the ninth circuit decided in the very case your arse talking about in the keller case it's the question that the court decided in th skin in the dryer case these are the the the application of right of publicity statutes is something that the court the federal courts have decided and these these exceptions are quite similar across the state codes and so while your honor is certainly correct that on many things indiana and california might disagree there actually isn't a reason to think that they would on these kinds of questions in part because at the end of the day not on this appeal but at the end of the day we're bound  by the first amendment which of course is a you know is a federal question that doesn't vary state to state and so i think on the question of whether something is newsworthy those are those are the kinds of concepts that this know so your i don't think that with respect to the names plaintiffs i think if you look at the complaint that that kind of advertising is i think it's a loose use of the word advertising in the sense that i think that with respect to the plaintiffs what they're talking about is the use in commentary that so and so mr sting mr daniels is a good value this week or something like that we are not here to defend and i think what the case do separate quite clearly is the kind of of one athlete advertising that your that your honor is positing that in the gate or a hypo in the coke bottle hypo in abdul jabbar and in jordan on the one hand and then cases like c card to use g and fredo dryer on the other hand that are using lots of athletes and i think it it's sort of gets to the nature of the right of publicity to show how far we are from the core rights what we're talking about here is information that's in the public domain we're talking about the use of all of the athletes in a sport so the risk of a of indorsement or false false endorsement is quite small you're not talking about it in the context of a by now or image advertising situation and you're not talking about it in the zucchini context where you're taking away the incentive to create the very thing where you're taking away the performance you're talking about nonproprietary data that is of tremendous interest and that i think does separate and the cases reflect that your honor that is the distinction that i mean that the cases aren't all dealing with the exact same provision your honor reflects that that is the game case but again even there what the court did even if you take the majority judge thomas of course took a different approach which would be much more favorable to us but even judge by we went out of his way in the majority opinion and in the footnote at page twelve eighty three of the opinion to discuss the differences between fantasy game fantasy games at issue here and the game at issue there and so i think it really would be the first time that a court decided  that a game like this premised on statistics and the use of statistics would would be an actionable right of publicity case at least in the recent case law i mean there are some older ones but but then the more recent cases do fall right on that fault line and we think that makes we makes good sense in part as i say because we are very far from the core of the right of publicity i don't know whether it makes sense in iraq to to address the illegality points and the salary points but let me just do so very briefly while i have my time the illegality i don't think i could have said it better than  judge runner did which is to say we should not be adding exceptions to the statute or the judge or their implied that we won't be adding it should be adding exceptions to the statute that aren't there this is a comprehensive statute with a lot of exceptions it goes on for nine pages in the appendix to the brief ulit legislature considered a whole host of policy judgments it made exceptions to the statute it did not include one here the court i think should be very hesitant to add to that in part because illegality i think is both under and over inclusive in some ways it doesn't really map on to the injury that right of publicity is trying to get whether you lose some son commercial opportunity doesn't depend i don't think on whether it's illegal or not and the flipside if you have an objection to it it may go beyond illegality so i don't think that an illegality exception really makes any sense here and it really is the kind of judgment that the legislature should make the other side points to the rocha case i think rope is easily distinguishable in fact distinguishes itself the broke a statute was a fair line that said there's and if there is a privilege but your mental health privilege and then what rocha itself said was the legislature did not undertake to cover the entire subject of the privilege or of confidential communications related to mental health with the with the passage of the statute and did not design the statute as a substitute for the common law it's a very different situation than we have here where you have a a finally detailed and count and an important statute that addresses all of the policy questions on the salaries as statistical information they are derived from the statistical information they're meant to be a proxy for statistical productivity and of course in some ways they're just don't ranking right it's if somebody had it would be newsworthy to say le bron james is twice as good as as as al horford or some other player this is a salary sort of does the same thing you know in a ranking situation so if i could then just just swing back your honor and and and close with two points one more on the on the certification question the judge easterbrook is asking the other reason why i don't think a certification approach is necessary here is this is not some special language that indiana came up with on its own if your honor looks at for example the language of the reporting statute and it says the use of a personalities name or likeness in connection with the broadcaster reporting of an event or a topic of general public interest and you compare that for example to the california statute which is that which is commonly interpreted and interpreted by the one circuit which which limits i think you said the magic phrase if we go to figure out what the california statute means you're directing us not to the supreme court of california but to the ninth circuit well all of these cases seem to be federal we don't seem to have any genuine state moral anywhere so i don't think that's right your honor gene frito for example a case we rely on tremendously is an interpretation of that very language in california which is virtually identical to the language in the indiana statute and jim prieto we think is quite an important guide post and we rely on it tremendously in the brief we think but we don't think the jian frito adopted some magic or surprise interpretation what the courts have done is sensibly as i say divided the world so the so that things there are true advertisements or  image advertising the jordan abdul jabbar gaita ratings samples those things are covered but things where you have a broader a broader use of statistics to cover or not and that reflects the kind of first amendment interest language is the same you're not seeing courts around the country saying oh the same language is different because california has a very different policy than indiana in fact it's the opposite if you look at dreier what dreier says is these states all basically interpret the things the same way and in part that's because they're using off the shelf language and in part it's because they're animated by the kind of first amendment concerns that proto baseline on how much flexibility a state could have insured it seems to me that the newsworthiness and public interest second point the defense attorneys argue that it's the players salaries are a proxy for statistics there that is the representation by the defense lawyers there's no evidence in the record to support this proposition in fact the whole the sole reason the draft purchase from them third point judge over there i think the twenty six a factual development point is very well taken there is no discussion nicholas stern or statistics in the record below and last point in closing section six specifically defines a name is a protected aspect of a