can take the podium quote dow jones was at the very least reckless as to truth as evidence by its willingness to rely exclusively on anonymous sources as to claims against kobe o its failure to adequately vats and investigate those sources article statements were false because the author is fabricated quotes and statements and falsely attributed them to unnamed government sources that's totally   frankly very little before us at this stage of the proceedings other than the article itself if there is at least circumstantial evidence based on a government implausibility standard to give an dispositive again by itself but does given them friends that there may not have been adequate vetting involved so that is a very short way of concluding our allegations as to actual malice  returning to the point regarding amendments i tend to write was decided almost a year after the complaint was filed and six months after briefing closed on the motion to dismiss the this court has  held and actually discredit other circuits have long held that plaintiffs should be permitted to amend based on new doctrine and one example of that was in the absolute act of this case in the wake of morrison vs national australia substituting its own view of what may be plausible and possibly conflating probability with plausibility which at this court the u s supreme court and other circuits are uniform in saying is prohibited on a motion to dismiss morning may it please the court i'm catherine bolger on behalf of dow jones i want to start off actually talking about the article that's at issue in this whole dispute because the article is give some context to the  the appendix it's the very first page of the appendix the article is six pages long the article talks about u s prosecutors efforts to investigate several high ranking venezuelan officials that's its lead its first sentence it talks about the fact that it's mighty hard to prosecute venezuelan officials because of the poor and deteriorating conditions between our countries and it discusses the fact that there's an uptick in informants in that context it talks about m it says he's the second most influential man in america in story and event in venezuela and its sights law enforcement fact sources for the fact that he's the leading and the biggest target of the investigation it also by the way goes out of its allegations that he was involved in drug trafficking led him to expel twenty two people from venezuela and then once specifically addressing allegations by a man named  doesn't know anything he's and he's an impostor plaintiff filed a complaint based on that article we wrote a pre pre motion letter to the court seeking to dismiss it the court  then filed a complete motion to dismiss making the arguments were making before you today and the plaintiff again amended his complaint so this as you have correctly pointed out it is the is the plaintiff's third shot at a complaint and judge forrest was correct to dismiss it i mean to start very quickly on the question of falsity because i would not knock out the whole complaint an actual malice will so i'll be happy to go quickly through falsity so since ten right judge poor thank you the plaintiff in the second circuit is clear that the plaintiff must plead facts that if proven would allow a reasonable person to consider the allegedly defamatory statement to be false judge forest correctly held and i don't think the plaintiff you can contest that the defamatory just or sting of this article is that mr can pay is under investigation for drug trafficking and money laundering the point of hasn't put that's false in fact he's pled it's true now not in his brief to this court but if you look at the complaint itself which is in the appendix paragraph twenty five which is page twelve of the appendix says that the statement that one or more officials from the d o j and possibly other federal agencies have delivered deliberately leaked to it information about a classified ongoing criminal investigation enough so as to definitively label mr cabello as a leading target of the investigation or one of the heads if not the head of the cartel is material false in other words the plaintiffs pled what dow jones did was nist describe the investigation not get it wrong in the face of what plaintiff actually pled now claiming that he's pled the material falsity of the defamatory just are saying is simply inconsistent with he pled here now the point of cites paragraph eighteen of the complaint and says that says he and ambiguously pled that the headline was materially false the headline which is obviously on the first page of the appendix says venezuelan officials suspected of turning country into a global cocaine u s probe targets number two official several others on suspicion of drug trafficking and money laundering but if your inner circle look at paragraph eighteen which is ten of the complaint it doesn't on ambiguously plead anything it's not totally clear what exactly the plaintiff is saying is false about the headline and tanner right nicely articulates that to plead falsity you are to plead how a statement is false well it just says mishmosh that maybe something in that headline is wrong but it could be that the plaintiff isn't under investigation for drug trafficking it's money laundering it could be that it isn't cocaine it could be pot it could be something else what is false about the headline is never really pled so we think the plaintiffs don't even get over the most basic element which is that they haven't identified a false statement but even if you disagreed with me on that i think it's very clear that the plaintiff hasn't played actual malice and even today the plaintiff again shows the same misunderstanding the very passage that the plaintiff began his oral argument in judge farse opinion which is on page thirty eight of the opinion makes my point at page thirty eight of the appendix the plaintiff read to you the words of of judge farse opinion except he left out the last sentence of the paragraph which is each of these assertions is implausible and unavailing that's the very end of the paragraph that the plaintiff just read and the reason for that is because the bureau case demands that the plaintiffs do more than simply use the ball boilerplate language that signifies to the court that they're trying to make an actual malice argument they're supposed to plead facts that plausibl support though that language and there are no facts here the closest the plaintiff's gets to pleading a fact to support these boilerplate allegations is his belief that it's highly improbable that a department of justice  what she pointed to was a failure to plead facts so for example i understand that judge far said that the dow jones would have said that they know these sources rather than they are unknown but that's the standard is not it's not actual malice to rely on a confidential source it's actual malice to rely wholly on an unverified confidential source the plaintiff was obligated to come forward with facts to show a wholly  unverified source here can't rely can't say we were lied wholly on anonymous sources because remember mr compare himself is quoted talking about these allegations and in addition there are other people quoted on the record in the story and a unverified aspect of it well there's no fact that leads anybody pled in the complaint that could lead the defendants to have doubted a hypothetical anonymous source the plaintiff could have pled something like they relied or should have put something like they relied on sources who were corrupt they relied on sources that mr kobe oh no didn't have this information would have to be more specific but the point is that the plaintiff was obligated  can't just say well they relied on confidential sources i've pled malice you have to plead facts that create the inference that the defendants relied on wholly unverified anonymous sources that's actually the distinction this court made and bureau that identify sources that are reported anonymously in the article well or they don't necessarily have to identify the source but they do have to have a reason to disbelieve the source or a reason to believe to say it more carefully that the defendant purposely avoided truthful information in relying on the source and i think that's the thing about this that's so significant the so the hallmark of actual malice is purposeful avoidance of the truth here there's ample evidence the defendants didn't try in any way to avoid the truth in fact they purposely purposefully intended to invoke it they reached out to the defense the plaintiff he refused to answer their questions but they still went out of their way to include his quotations on specific allegations in the article in addition of course at the time the wall street journal article was written as it says on its face the venezuelan article had already been written and this point if pled there is an obvious say article written in spanish and there are several articles written in the or times related to this general topic so it's not just that the plaintiff didn't clete plausible facts it's that he couldn't at the time this article was published because there's simply nothing in this that would indicate that there was any plausible  eny any purposeful avoidance of the truth very quickly on the question of amendment as you off pointed out plaintiff has already amended this is his third complaint in addition he didn't seek leave to amend in the court below and actually judge tanner it even talks about that in tanner right the plaintiff sought to amend in this court said you didn't ask for it below and you can't ask for it now and the other thing is tamar right is consistent with many many cases that came before it it's consistent with the homan case it's consistent with the trout pond case it's consistent with a bunch of other cases we cited in our in our court it was a great citizen but it wasn't it didn't change anything thank you thank you so you've reserve dated october seventh twenty sixth this is on page fifty three of the appendix on docket entry twenty nine which you know it which is just in the docket it says there are shall not be further amendments the complaint thereafter after meaning after the second the man the complaint and that this date is still predates this court's decision in town are right by believe more than half a year so this is just further evidence of the fact that at the time mr bayle filed his second the minute complaint he simply did not have the benefit of reference to the new possibly stricter doctrine no standard that was in place that this court pleading stage we only have the article itself in front of us there's there's been no further there's been no further discovery of facts at this stage so with only the article in front of us  is based on anonymous and unverified sources however if you take a careful look at the article everything concerning you know every act of the accusations at issue as to mr could bail were actually