[00:00:04] Speaker 03: Good morning, Your Honors. [00:00:05] Speaker 03: May it please the court, Ian Pryor on behalf of Jonathan Talbot. [00:00:08] Speaker 03: On June 21, 2023, Manoa Ainu, a North Face-sponsored rock climber, decided to begin a campaign to destroy the reputation of Mr. Talbot, destroy his career, and effectively rearrange his life. [00:00:24] Speaker 03: And the basis for that was a short conversation the previous day. [00:00:29] Speaker 03: in which Mr. Talbot, having recognized Mr. Ainu on the street as a North Face climber, somebody that had gained fame and notoriety for trying to diversify the climbing industry, approached Mr. Ainu, introduced himself, and engaged in friendly conversation. [00:00:45] Speaker 03: He mentioned to Mr. Ainu that at his previous job, Mr. Talbot had served on the Diversity, Equity, and Inclusion Committee. [00:00:53] Speaker 03: At that point, things apparently went wrong, and Mr. Ainu became offended by that. [00:00:59] Speaker 03: So at 3 in the morning, while Mr. Talbot was asleep, Mr. Ainu started posting to his 15,000 Instagram followers. [00:01:07] Speaker 03: The thing that he posted right off the bat was a clear assertion of fact. [00:01:11] Speaker 03: that Mr. Talbot tried to fight me while saying racist things. [00:01:16] Speaker 03: That's an assertion of fact. [00:01:18] Speaker 03: Now, over the course. [00:01:20] Speaker 03: Can I back up? [00:01:20] Speaker 03: I want to parse that out. [00:01:22] Speaker 04: Because there's two parts of that. [00:01:24] Speaker 04: He tried to assault me. [00:01:27] Speaker 04: Why would that be a statement of fact? [00:01:33] Speaker 04: Explain that to me. [00:01:34] Speaker 04: Because assault, I mean, does it have one meaning? [00:01:37] Speaker 04: I mean, does it mean that you have to have physical confrontation? [00:01:41] Speaker 04: Could you assault verbally? [00:01:43] Speaker 04: I mean, how do we make that objective? [00:01:46] Speaker 03: You know, it depends on the context, as with everything in this. [00:01:50] Speaker 03: But I think when you start looking at the statements he made throughout his Instagram posts, you know, he squared up, he got in my face, he invited me to fight. [00:02:00] Speaker 03: He is lucky to not have learned physically. [00:02:04] Speaker 03: What's clear is that however you're framing the assault, this is a presentation of, this was near a physical confrontation where a fight almost broke out. [00:02:14] Speaker 02: Well, if you look at the whole thing, it's ungrammatical and goes on and on and on, but there's nothing in it that really specifies that there's anything physical, that they just basically [00:02:30] Speaker 02: were yelling at one another and didn't like one another. [00:02:32] Speaker 02: And I guess I think it's ambiguous at best as to whether there's any accusation of physical violence or threatened physical violence. [00:02:46] Speaker 03: Well, Your Honor, I would submit that I think what a reasonable person would see when tried to fight me in that context [00:02:56] Speaker 03: reasonable person would assume that tried to engage in a fight, in something, whether it's pushing, shoving, threatening to fight. [00:03:03] Speaker 02: You know, he started apologizing, you know, buy me a beer, he squared up, he got in my face. [00:03:09] Speaker 02: That doesn't sound like fighting. [00:03:12] Speaker 02: It sounds like macho bravado is talking. [00:03:18] Speaker 03: Well, again, I would interpret squared up to squared up, put the fists up, square your shoulders, prepare for a fight. [00:03:26] Speaker 02: It doesn't say that. [00:03:27] Speaker 03: Well, it says he squared up. [00:03:28] Speaker 02: I got in my face. [00:03:30] Speaker 03: Right. [00:03:30] Speaker 03: And that's, that's, I believe how our reasonable person would interpret that. [00:03:33] Speaker 04: Trial on whether, how far he was away from him when, and, and, and his body posture on when he was talking to him. [00:03:43] Speaker 04: I mean, is that what that turns on and whether that's defamation or not? [00:03:46] Speaker 03: No, I don't believe it does. [00:03:48] Speaker 03: I think the totality of the circumstances when we say saying racist things while trying to fight me. [00:03:56] Speaker 03: OK, that's a separate issue and I want to talk about that one. [00:03:59] Speaker 02: Sure. [00:03:59] Speaker 02: Yeah, I mean, basically, he seems to be saying he kept trying to shake my hand. [00:04:03] Speaker 02: God forbid he should shake my hand. [00:04:05] Speaker 02: I mean, it doesn't sound like he's really trying to fight. [00:04:08] Speaker 02: If you read the whole thing through, it sounds like, [00:04:14] Speaker 02: It doesn't sound like a physical threat. [00:04:19] Speaker 03: And I understand the questions are separating them, but I think we need to look at them somewhat together because they do kind of color each other. [00:04:28] Speaker 02: Why isn't calling someone a racist or a sexist or an anti-Semite, why isn't that an opinion? [00:04:35] Speaker 03: Well, that depends. [00:04:36] Speaker 03: And as Your Honors know, whether it's the Ninth Circuit, we've seen, we've seen cases from the Second Circuit, the general [00:04:43] Speaker 03: Analysis comes down to, I think, three questions. [00:04:46] Speaker 03: First, is it an assertion of fact? [00:04:49] Speaker 03: And there's a difference, and there's two buckets here, where we have he said racist things versus he is a racist. [00:04:57] Speaker 03: Two buckets. [00:04:58] Speaker 04: You may ask about that, because I agree with you. [00:05:00] Speaker 04: Well, I'm not sure I agree with you. [00:05:01] Speaker 04: I think you're saying he's a racist is not defamatory. [00:05:05] Speaker 03: I'm not saying that. [00:05:07] Speaker 03: I'm saying it depends. [00:05:08] Speaker 03: There's a next level of analysis. [00:05:12] Speaker 04: But that's different than saying he said racist things, potentially. [00:05:17] Speaker 04: But how do we distinguish that? [00:05:18] Speaker 04: If me calling you a racist is not defamatory because it's a matter of opinion, doesn't that also apply to the statements? [00:05:26] Speaker 04: I mean, I agree with you that [00:05:28] Speaker 04: There's a difference there, because saying that you said racist statements is a different bucket. [00:05:35] Speaker 04: But I'm not sure how we could say, assuming we agree that calling you a racist is not defamatory. [00:05:42] Speaker 04: How does it become defamatory if I describe the statements he made that way? [00:05:47] Speaker 04: He didn't say the statements that were made. [00:05:48] Speaker 04: Well, he kind of did make the statements. [00:05:50] Speaker 03: Well, so I'll take the first, the first piece of that first, which is how, you know, is there some level of opinion in someone saying some sense of racist, right? [00:06:00] Speaker 03: Well, sure. [00:06:01] Speaker 03: And there's also some level of opinion in saying that [00:06:04] Speaker 03: somebody sexually harassed me. [00:06:06] Speaker 03: It does depend on the perspective, but those are things that are tried in court every day, whether it's a racial harassment claim or sexual. [00:06:13] Speaker 02: That's why all this other stuff matters, because basically what he's talking about in detail is an uncomfortable conversation where the person is trying to apologize, shake my hand, he's bugging me, leave me alone. [00:06:28] Speaker 02: It's not really about [00:06:30] Speaker 02: to use your example, sexual harassment, saying, you know, this person walked up behind me and grabbed my rear end. [00:06:39] Speaker 02: I mean, that's what I call sexual harassment. [00:06:42] Speaker 02: That's a factual statement. [00:06:44] Speaker 02: But here, the factual surround is basically he tried to shake my hand. [00:06:49] Speaker 02: He was up in my face. [00:06:52] Speaker 02: He was saying really stupid things. [00:06:56] Speaker 02: And it just, I don't see [00:07:00] Speaker 02: I'm having trouble seeing what the factual assertion is that is allegedly false. [00:07:11] Speaker 03: Well, I'd point the court, and I know it's not precedent, but to the Second Circuit case in law. [00:07:16] Speaker 02: Well, I'm asking about this. [00:07:18] Speaker 02: What is in these posts that in your view is factual, specifically factual and false? [00:07:29] Speaker 03: He said racist things. [00:07:31] Speaker 03: When someone says they said racist things, a reasonable person is going to think that's a racial slur or something to that effect. [00:07:39] Speaker 02: That's not what it said. [00:07:41] Speaker 04: I mean, that goes back to my question about [00:07:44] Speaker 04: If me calling you a racist can't be defamatory because it's not objectively proven to be true or false, how can making a racial or a racist statement be proven objectively true or false? [00:08:00] Speaker 03: Well, if I may, Your Honor, I would disagree with that first premise. [00:08:04] Speaker 03: I think that from the case law, for example, [00:08:09] Speaker 03: the case where somebody was called an anti-semite. [00:08:11] Speaker 03: It was a judge that was called an anti-semite out of the Ninth Circuit. [00:08:14] Speaker 03: I have the Sagman case. [00:08:17] Speaker 03: The court said, well, look. [00:08:18] Speaker 04: That was Yagman, I thought. [00:08:19] Speaker 03: Yagman. [00:08:20] Speaker 03: Sorry. [00:08:20] Speaker 03: Yagman. [00:08:22] Speaker 03: This is something where they disclose the facts behind the opinion, which is, [00:08:26] Speaker 03: Well, he's frequently sanctioned Jewish attorneys more than non-Jewish attorneys. [00:08:31] Speaker 03: So being called anti-Semitic is a fully developed opinion, however you think of it, based on the facts that were disclosed. [00:08:40] Speaker 03: Whereas if you have something that could be an opinion that does not have the facts disclosed, well, then we get into mixed opinion territory. [00:08:48] Speaker 03: Is John Jones a liar from the restatement in Milkovich? [00:08:52] Speaker 03: Or walking down the street and saying, I walked down the street, [00:08:56] Speaker 03: I see my neighbor, he's an alcoholic. [00:08:59] Speaker 03: That's different and that could be defamatory versus I walk down the street and see my neighbor, you know, in six months he's drank two beers, I think he's an alcoholic. [00:09:07] Speaker 03: Well, you can determine that that opinion is probably invalid, but it's not defamatory because you've disclosed the facts behind the opinion. [00:09:14] Speaker 02: Well, that's the problem I have here, too, because he [00:09:17] Speaker 02: discloses in great detail what happened, which is this is a long conversation. [00:09:23] Speaker 02: He's trying to stop the conversation. [00:09:26] Speaker 02: He says, you're not listening to me. [00:09:28] Speaker 02: I apologize. [00:09:31] Speaker 02: And then he says, well, why are you apologizing if you think you didn't do something wrong? [00:09:35] Speaker 02: I mean, he gives all the facts, and that's why I was asking you what [00:09:40] Speaker 02: Which of those facts do you think demonstrates that there's a factual basis that makes this defamatory as opposed to opinion? [00:09:53] Speaker 03: Those facts, the discussing what happened in the bar is after the confrontation. [00:10:00] Speaker 03: So there's the whatever, not confrontation, the introduction on the street. [00:10:04] Speaker 03: There's that introduction and then there's what happened after. [00:10:07] Speaker 03: Mr. Inou spends a lot of time talking about what happened after. [00:10:10] Speaker 03: But when he's talking about what happened on the street, he does not say what it was that Mr. Talbot said, which I thought he did. [00:10:20] Speaker 04: I thought he did. [00:10:21] Speaker 04: And he said, I mean, look, I don't. [00:10:25] Speaker 04: Reading this, I don't come to the conclusion that he's a racist. [00:10:28] Speaker 04: I'll just be honest with you. [00:10:30] Speaker 04: And in fact, I think his company, Talbot's company, said there was no identification of any racist statement that was made. [00:10:42] Speaker 04: Do I have those facts correct? [00:10:45] Speaker 04: I believe a few days later after they had talked to Ainu, correct. [00:10:51] Speaker 04: does give some color to this and says, well, I told him I was in diversity, and then apparently in the way he was, apparently the way that Talbot was asking the questions, I knew took offense to that. [00:11:01] Speaker 04: Why doesn't that provide the context for someone to look and say, hmm, problem's not Talbot, problem's I knew. [00:11:08] Speaker 04: He's just way oversensitive. [00:11:09] Speaker 03: I think the statement that he was asking me questions about diversity is still over broad. [00:11:15] Speaker 03: It's like saying he was talking to me about race. [00:11:18] Speaker 03: Well, what about race? [00:11:19] Speaker 03: What is it in that generalized discussion that formed your opinion? [00:11:24] Speaker 03: And I would also add that, sure, somebody could maybe look at this and think one thing. [00:11:28] Speaker 03: But outdoor research, Mr. Talbot's company released a statement the next day based on Mr. Inu's posts on the 21st. [00:11:37] Speaker 03: And they didn't talk about, [00:11:38] Speaker 03: You know, we learned about Mr. Inu's opinion of Mr. Talbot, and we're going to take action. [00:11:43] Speaker 03: No, we learned that there was a confrontation between an OR employee and Mr. Talbot, and discriminatory conduct will not be tolerated. [00:11:52] Speaker 03: They interpreted it as discriminatory conduct. [00:11:54] Speaker 02: That's certainly evidence that a reasonable person could have... Well, they may have been doing that just to be extra careful, whether they thought it was discriminatory or not. [00:12:05] Speaker 02: Because it was perceived that way, they wanted to make sure that everybody understood that that's not their viewpoint. [00:12:12] Speaker 02: I'm not sure that, I don't understand why you think that demonstrates that they actually thought that what he did was wrong. [00:12:20] Speaker 03: it's what a reasonable person could conclude from the statements. [00:12:23] Speaker 04: And we also cited some of- I mean, I guess you're just using that or what the statements could be interpreted as. [00:12:30] Speaker 04: Yeah, no, look, it's complicated. [00:12:32] Speaker 04: There's a lot of interplay here. [00:12:34] Speaker 04: Why was he actually- so he wasn't terminated. [00:12:38] Speaker 04: Talbot was not terminated until a few days later or even weeks later. [00:12:41] Speaker 04: He was put on administrative leave. [00:12:44] Speaker 04: And then he was terminated, and I know it's hard to read into this because companies, you know, [00:12:50] Speaker 04: never say the truth, but they say he was terminated because he showed poor judgment before and after the Barr incident. [00:12:59] Speaker 04: Correct. [00:13:01] Speaker 04: What do we take from that? [00:13:03] Speaker 04: I mean, because the real problem here seems to be that Talbot was terminated. [00:13:07] Speaker 04: I mean, if he hadn't been terminated, I'm wondering whether we'd be here if research had kept him on and just give him a warning and said, hey, you know, [00:13:17] Speaker 04: Be careful about what you're saying. [00:13:19] Speaker 04: And so I'm sensitive to Talbot's position on this. [00:13:22] Speaker 04: But I'm wondering what we're supposed to take from that, because was there more to it? [00:13:26] Speaker 04: Is there anything in the record about why he was actually terminated? [00:13:30] Speaker 03: No. [00:13:30] Speaker 03: I mean, I believe that when they talked about before and whether it was before and in the bar or before and after the bar, the before the bar is the introduction on the street that happens after the focus group that he's there for. [00:13:43] Speaker 03: And then the in the bar is the back and forth in the bar. [00:13:46] Speaker 03: I think if you look at the context of that, along with the public pressure that Mr. Aimee was bearing on outdoor research, along with outdoor research's initial statement, it's clear for whatever reason that that is why they terminated him. [00:14:01] Speaker 02: Whether they believed it or not... To me, when I read all this, to me the poor judgment is... [00:14:11] Speaker 02: continuing to have a conversation with this person who obviously didn't want to have a conversation with him. [00:14:18] Speaker 02: I mean, if he had walked away after initially the person said, you know, our conversation is over, bro, or something like that, I don't remember the identical words, he could have gone to another bar and walked away, and none of this would have happened. [00:14:37] Speaker 02: To me, that's what poor judgment is about, not your interpretation at all. [00:14:45] Speaker 02: I just don't think that's a reasonable interpretation. [00:14:47] Speaker 03: That's what Ainu stated in his posts, in his Instagram posts. [00:14:51] Speaker 03: That's not necessarily what the record supports. [00:14:55] Speaker 03: Mr. Talbot thought what's going on here. [00:14:56] Speaker 02: He could have walked away. [00:14:58] Speaker 02: He could have walked away when it was clear from about minute two, if you read this pose, that this person was hostile to him in some way, for some reason. [00:15:08] Speaker 02: It doesn't even matter why. [00:15:09] Speaker 02: So I guess I don't find your interpretation of what the poor judgment was to be reasonable. [00:15:19] Speaker 03: Well, I think if you look at the context of the conversation, if you look at, you know, Mr. Talbot approached Mr. Ainu and talked to him because they had it. [00:15:28] Speaker 03: He had an interest in what Mr. Ainu was doing. [00:15:30] Speaker 03: And clearly, he said, I want to understand what I did wrong. [00:15:33] Speaker 02: When Mr. Ainu said something hostile and was clearly not wanting to have a conversation, he could leave. [00:15:40] Speaker 02: It's like road rage, you know? [00:15:42] Speaker 02: When somebody's like that, you just keep driving, right? [00:15:45] Speaker 02: I mean, that's what he... [00:15:48] Speaker 02: When I look at this situation, that's what I see is pretty much the only reasonable interpretation of what the poor judgment was. [00:15:57] Speaker 03: Well, I think that would become an issue of fact at that point. [00:16:00] Speaker 03: What actually was, I mean, we have one statement from outdoor research as to why. [00:16:06] Speaker 03: But what is the reason? [00:16:07] Speaker 03: What is the true reason behind why? [00:16:09] Speaker 03: We don't know that. [00:16:10] Speaker 03: That's what discovery is for. [00:16:12] Speaker 03: So all we have is before the bar and during the bar. [00:16:17] Speaker 05: Counsel, if I could ask you to address the Sandman case from the Sixth Circuit, I'm assuming they're going to bring it up. [00:16:22] Speaker 05: I want to hear from you. [00:16:23] Speaker 03: Sure. [00:16:24] Speaker 03: I think the Sandman case is distinguishable. [00:16:27] Speaker 03: If I may take two minutes from the bottle. [00:16:29] Speaker 03: I think the Sandman case is distinguishable because, number one, it happened in a very public place. [00:16:34] Speaker 03: There were witnesses. [00:16:35] Speaker 03: There were photographs taken by the media. [00:16:38] Speaker 03: There were videos online. [00:16:40] Speaker 03: The Sandman case went to great lengths to explain that, look, all of the stories that cover this either describe the incident fully [00:16:48] Speaker 03: or linked to video of the incident. [00:16:51] Speaker 03: So it's one of those situations, like Milkovich talks about, where if the facts supporting the opinion are either fully disclosed or fully known, then it's pure opinion. [00:17:02] Speaker 03: However, if those facts aren't fully disclosed or aren't fully known, then it becomes mixed opinion and is actionable. [00:17:11] Speaker 03: With that, I will reserve the balance. [00:17:12] Speaker 05: I'll give you three minutes. [00:17:13] Speaker 03: Thank you. [00:17:15] Speaker 05: All right, so for next year, just so we're clear here, we've got two council splitting time. [00:17:20] Speaker 00: Yes. [00:17:20] Speaker 00: I'm taking eight. [00:17:22] Speaker 00: He's taking five. [00:17:24] Speaker 00: I'm taking seven in rebuttal. [00:17:26] Speaker 00: 20 minutes. [00:17:27] Speaker 05: On the cross appeal for the slap. [00:17:29] Speaker 05: Okay, so just so we're clear, I'm going to take a minute. [00:17:31] Speaker 05: So you're taking eight, then you're taking five, and you want to reserve seven. [00:17:39] Speaker 05: Okay, so when I preside, I should have said this before, so who's going to go first? [00:17:44] Speaker 05: Ms. [00:17:45] Speaker 05: Walker, I'm going to give you a hard eight. [00:17:48] Speaker 05: What I mean by that is so you don't have to sweat over here. [00:17:51] Speaker 05: I'm cutting you off at eight. [00:17:53] Speaker 05: If you're done before eight, then you get more time. [00:17:56] Speaker 05: But I don't want you in a position where all of a sudden she goes 13 and you got 30 seconds. [00:18:01] Speaker 05: Okay? [00:18:02] Speaker 05: So with that in mind, we're going to go a hard eight, and you may proceed. [00:18:05] Speaker 00: Good morning. [00:18:06] Speaker 00: There are two reasons that this case fails. [00:18:09] Speaker 00: Could you state your appearance, please? [00:18:10] Speaker 00: Yes. [00:18:10] Speaker 00: Lita Walker on behalf of the North Face with Ballard Spar. [00:18:14] Speaker 00: And there are two reasons the case fails against my client. [00:18:18] Speaker 00: The first is that it did not publish Mr. Anu'u's speech, and it is not liable under any doctrine. [00:18:25] Speaker 00: And second, and what you've just spent the bulk of my opposing counsel's time discussing, is that the speech itself was not actionable. [00:18:32] Speaker 00: it is opinion, and that requires dismissal as to both defendants. [00:18:36] Speaker 04: It's a little bit odd, isn't it, that we're having you speak first because your claims, I mean, if the underlying one is not defamatory, then you couldn't have vicarious liability for it. [00:18:48] Speaker 04: You're sort of putting the cart before the horse because you're saying, I mean, let's assume they were defamatory statements. [00:18:54] Speaker 04: I'm not aware of defamation ever being [00:18:58] Speaker 04: There's vicarious liability for defamation either. [00:19:01] Speaker 00: Yeah, so I'm not sure you need eight minutes to make your case to be honest with you I don't have to address vicarious liability if you don't want I think I would address the merits first because if you went on the merits the next issue doesn't really I'm happy to do that your honor and I wanted to maybe pick up on that where [00:19:20] Speaker 00: where you began questioning my opposing counsel. [00:19:22] Speaker 00: So you made a distinction or someone asked, is there a difference between he's a racist or he said racist things? [00:19:29] Speaker 00: And the answer to that is no. [00:19:31] Speaker 00: And my opposing counsel is confusing the doctrine of pure opinion and the doctrine of mixed opinion [00:19:37] Speaker 00: in which case facts must be disclosed. [00:19:41] Speaker 00: Pure opinion? [00:19:42] Speaker 00: I love Bruce Springsteen. [00:19:44] Speaker 00: I hate the color purple. [00:19:45] Speaker 00: Mushrooms are gross. [00:19:47] Speaker 00: You don't need any facts. [00:19:48] Speaker 00: And multiple courts have held that he's a racist is a pure opinion. [00:19:54] Speaker 04: But he made racist statements is different. [00:19:58] Speaker 00: I disagree, Your Honor. [00:20:00] Speaker 00: He said racist things is not different. [00:20:02] Speaker 00: That is also a subjective judgment of what is racist. [00:20:06] Speaker 00: Now, if he said, if Mr. Inou had gotten online and said, Mr. Talbot called me the N-word, that's a fact. [00:20:15] Speaker 00: In the La Liberté case, the allegation was or the suggestion implication was the plaintiff had said, he's a dirty Mexican. [00:20:23] Speaker 00: That's provable. [00:20:24] Speaker 00: They said it or they didn't. [00:20:26] Speaker 04: Here's the problem that I have with this case. [00:20:28] Speaker 04: Mr. Ainu clearly had a vendetta to get him fired. [00:20:32] Speaker 04: He wasn't gonna stop. [00:20:35] Speaker 04: And he said, I mean, he did say he assaulted me last month. [00:20:40] Speaker 04: That one seems more provable. [00:20:42] Speaker 00: Can I answer that? [00:20:43] Speaker 04: Yeah. [00:20:44] Speaker 00: So to me, first of all, the assault statement was never alleged to be false and defamatory. [00:20:50] Speaker 00: If you look at paragraph 84 of the complaint, there is a very detailed listing of 11 statements that they allege are false and defamatory. [00:20:58] Speaker 00: The assault statement is not among them. [00:21:00] Speaker 00: Also not among them, Your Honors, is the statement that. [00:21:05] Speaker 04: OK, so let me address that, because I was looking for that. [00:21:07] Speaker 04: I thought I came to the conclusion that [00:21:11] Speaker 04: that it was encompassed within there. [00:21:13] Speaker 04: But I had that question. [00:21:15] Speaker 04: Let me ask you that. [00:21:16] Speaker 04: If that's true, then why was this dismissed with prejudice and not, and because, I mean, basically, the response to that may be, well, he didn't ever ask for an opportunity to amend the complaint. [00:21:29] Speaker 00: That is true. [00:21:30] Speaker 00: I mean, there was a notice to him that we would be bringing an anti-SLAP motion, so he had a chance to amend or withdraw at that point. [00:21:37] Speaker 00: We had a motion to dismiss. [00:21:39] Speaker 00: He could have filed an amended complaint. [00:21:41] Speaker 00: You know, he's had multiple opportunities. [00:21:43] Speaker 00: We've raised this issue multiple times. [00:21:45] Speaker 00: He also did not allege as false and defamatory the statement that Mr. Talbot squared up. [00:21:53] Speaker 00: And he did not allege as false and defamatory that Mr. Talbot got in Mr. Unnu's face. [00:21:58] Speaker 00: If you look at the bullet points in paragraph 84, what he says is that he tried to fight me, initiated a fight. [00:22:07] Speaker 04: But why? [00:22:08] Speaker 04: I mean, that seems to encompass that. [00:22:11] Speaker 04: I think maybe that's what I latched onto to say. [00:22:13] Speaker 04: I think this is within the realm. [00:22:15] Speaker 00: Yes, and I don't want to hang our hat on the waiver argument, even though I think it's waived. [00:22:20] Speaker 00: My point to you would be that all of those statements are essentially alleging that Mr. Talbot was acting in a physically menacing manner toward me. [00:22:29] Speaker 00: And that is opinion. [00:22:31] Speaker 00: I mean, assault has a subjective element of the victim's state of mind to begin with. [00:22:35] Speaker 00: He must have a reasonable apprehension of bodily harm. [00:22:38] Speaker 04: Can assault never be actionable? [00:22:41] Speaker 04: To say he assaulted, to say he hit me, that's actionable. [00:22:45] Speaker 00: Exactly. [00:22:46] Speaker 04: But to say he assaulted me, can that never be actionable? [00:22:49] Speaker 00: I don't think you have to decide that. [00:22:52] Speaker 00: And I think what you look at here is the content and context in which he made it. [00:22:57] Speaker 00: And as Judge Graber has pointed out, ungrammatical late night postings after a bar, clearly agitated, filled with emojis and profanities, [00:23:07] Speaker 00: No one thought that was a statement of fact. [00:23:11] Speaker 04: Well, back up. [00:23:12] Speaker 04: Somebody did. [00:23:14] Speaker 04: I mean, the company did. [00:23:15] Speaker 04: The company was concerned enough about it that people would think that that was statement of fact that they fired him. [00:23:20] Speaker 04: That's why we're here today, because he got fired. [00:23:22] Speaker 04: And this is a problem. [00:23:24] Speaker 04: I mean, I don't want to bring social background into this, but this is the problem that's going on, is statement disagreements can't just be disagreements anymore. [00:23:35] Speaker 04: And Mr. Ainu pushed this until Talbot lost his job. [00:23:39] Speaker 04: And that's the problem. [00:23:41] Speaker 04: Why doesn't that bring, does that bring this into, I know this wasn't really argued in the case, but per se, I mean, defamation per se, when you get into somebody's occupation, [00:23:51] Speaker 04: I mean, the law recognizes that it's more, you know, there's a stronger responsibility for the statements that you make. [00:23:58] Speaker 00: Well, I think you are bemoaning cancel culture. [00:24:03] Speaker 00: I am. [00:24:03] Speaker 00: And we can all bemoan that. [00:24:05] Speaker 04: That is not a commentary on the merits of the case, except that it makes me question whether we're dressing this correctly. [00:24:14] Speaker 04: Maybe, I mean, and it's not just Mr. Ainu. [00:24:17] Speaker 04: I mean, we can name 10 examples going up to the highest levels of the country where we've got to fix this problem. [00:24:24] Speaker 00: So I think on the, I don't disagree that it's a problem that needs to be fixed, but that doesn't speak to whether this was opinion, where you look at the content and content. [00:24:33] Speaker 04: Well, I'm wondering if it does. [00:24:35] Speaker 04: I'm wondering whether our law has been too deferential, and maybe there's nothing we can do because we're bound by it. [00:24:42] Speaker 04: But I'm wondering if our law has been too deferential to these opinion statements and allowed First Amendment protections to engender and contribute to an uncivil environment. [00:24:59] Speaker 00: So to get back to your question of whether assault can ever be actionable, it can be. [00:25:03] Speaker 00: And I would point you to the Telnet case where someone actually made a report to the police. [00:25:07] Speaker 00: Highly factual, deliberate, sober. [00:25:10] Speaker 00: What I would also point you to- We'll back up. [00:25:14] Speaker 04: To me, I think that goes against you here because this was tantamount to a report to the police. [00:25:21] Speaker 04: It was worse than that. [00:25:23] Speaker 04: It was taking this guy's profession and putting it on the chopping block. [00:25:29] Speaker 04: and making statements until he got what he wanted. [00:25:32] Speaker 04: So if you're talking about the deliberateness of the statements being made in a police report, I would say this is tantamount to that. [00:25:40] Speaker 00: But Mr. Ainu's motives, even if you want to call what he did malicious, is in no way a factor in any of the issues before you. [00:25:47] Speaker 00: I don't think that's accurate. [00:25:48] Speaker 00: The other thing I would point out about the assault statement is one you touched on, right, which is that he didn't say he pulled a gun, he threw a chair, he took a swing. [00:25:57] Speaker 00: Just like saying he's a member of the KKK or he called me the N-word, those are all factual. [00:26:04] Speaker 00: But he's a racist. [00:26:06] Speaker 00: He said racist things. [00:26:08] Speaker 00: I felt physically threatened by him, which is what all these statements boil down to. [00:26:12] Speaker 00: Those are not statements of fact. [00:26:14] Speaker 00: I have a question. [00:26:15] Speaker 04: Oh, go ahead. [00:26:16] Speaker 04: Oh, let me ask. [00:26:17] Speaker 04: We'll go here and we'll go here. [00:26:18] Speaker 04: Yeah. [00:26:19] Speaker 04: Did North Face, is Mr. Ainu still working for North Face? [00:26:24] Speaker 00: That's not technically in the record, Your Honor. [00:26:28] Speaker 04: Well, I'm just wondering if there shouldn't be tit for tat. [00:26:31] Speaker 04: And Mr. Talbot was fired for questionable judgment. [00:26:35] Speaker 04: Mr. Ainu might need to be taken action against for questionable judgment as well. [00:26:42] Speaker 02: I'm going to use a little bit of your rebuttal time, because you mentioned the anti-SLAPP issue, which you have not touched on. [00:26:52] Speaker 02: We have a case that [00:26:54] Speaker 02: is going to be heard en banc concerning the question whether an anti-SLAPP motion under state law can be brought in federal court, go for media. [00:27:06] Speaker 02: Is there any reason in your view why we should not wait for that case to decide this question? [00:27:14] Speaker 00: You do not need to wait. [00:27:15] Speaker 00: The Gopher Media case involves a different state's anti-slap statute, and it involves interlocutory appeal. [00:27:22] Speaker 00: The Washington anti-slap statute follows the same standard for a dismissal as Federal Rule 12, and the Ninth Circuit has consistently held that those statutes can apply in federal court. [00:27:36] Speaker 02: Yes, but on Bonk, it doesn't have to [00:27:38] Speaker 02: Stay with it. [00:27:39] Speaker 02: That's my point exactly. [00:27:40] Speaker 02: The court could decide that those cannot be heard in federal court, period. [00:27:46] Speaker 02: So that's my concern about deciding. [00:27:51] Speaker 02: I see. [00:27:51] Speaker 00: Yeah. [00:27:52] Speaker 00: I mean, we listened to that argument. [00:27:54] Speaker 00: That question didn't come up. [00:27:57] Speaker 00: And that was an interlocutory appeal, which this isn't. [00:27:59] Speaker 00: But if you think there is a chance that the Ninth Circuit reverses, [00:28:04] Speaker 00: Number of years of precedent holding that it can be applied in federal court Then on that isolated issue in this case, perhaps you would want to wait Very well. [00:28:15] Speaker 05: So what we'll do is for about it. [00:28:16] Speaker 01: We'll give her six Thank you Good morning Henry Tessar on behalf of Manoa I knew [00:28:34] Speaker 01: There's no question that there was a heated encounter in Bozeman, Montana between Talbot and Ainu. [00:28:39] Speaker 01: This case concerns whether Ainu's telling of that encounter and his opinions about that encounter [00:28:47] Speaker 01: on Instagram are actionable as defamation. [00:28:50] Speaker 01: They are not. [00:28:51] Speaker 01: These are subjective assessments or observations about another's conduct. [00:28:58] Speaker 02: Counsel, there's a curiosity, and maybe both you and opposing counsel can respond to this. [00:29:06] Speaker 02: As I understand their tortious interference claim, it rests entirely on the defamation claim, that is, [00:29:16] Speaker 02: That is the basis for the allegation of tortious interference. [00:29:22] Speaker 02: Tortious interference can be a lot broader than that, but it just isn't pleaded here. [00:29:28] Speaker 02: I mean, if I go out and pick someone out of the audience here in the court and I tell their boss to fire them, that could easily be tortious interference having nothing to do with defamation or a heated argument or whatever. [00:29:44] Speaker 02: You know, I don't like your cousin. [00:29:46] Speaker 02: So I guess I'm more concerned with the tortious interference claim than the defamation claim per se. [00:29:56] Speaker 02: Is there any other hook in this complaint that you are aware of? [00:30:03] Speaker 01: I am not and Talbot conceded at the district court level that if the court dismissed the defamation claim that the torsion interference claim should also be dismissed. [00:30:13] Speaker 01: I believe that was made in briefing and in front of Judge Morris in the district court. [00:30:18] Speaker 02: That's how I saw it too, but I thought that was unusual. [00:30:27] Speaker 01: Going back to you that this was the statements, the challenge statements of [00:30:32] Speaker 01: He tried to fight me and he made racist comments. [00:30:36] Speaker 01: Those are subjective assessments about another's conduct. [00:30:39] Speaker 01: Judge Nelson, you're completely correct that you, as the reader of Mr. Inew's statements, you're allowed to disagree with his opinion. [00:30:49] Speaker 01: The Herring Network case that I believe Judge Owens was on the panel for was a case where Rachel Maddow said, [00:30:58] Speaker 01: that a news network was literally paid Russian propaganda. [00:31:02] Speaker 01: She stated the facts that she was relying on, similar to here, where Manoa said he started asking me questions about DEI. [00:31:14] Speaker 01: He didn't want to hear my answers. [00:31:15] Speaker 01: He kept cutting me off. [00:31:17] Speaker 01: And by the way, as opposing counsel admitted, Mr. Talbot approached a random black North Face climber on the street and started asking him about [00:31:28] Speaker 01: diversity, and then he wouldn't listen to him. [00:31:30] Speaker 01: Well, hold on. [00:31:31] Speaker 04: I'm not sure that's entirely fair. [00:31:33] Speaker 04: I mean, he started to ask him about, as I understand it, the conversation started with their joint interest in climbing. [00:31:40] Speaker 04: And then Mr. Ainu brought up, I'm in DEI. [00:31:44] Speaker 04: And that prompted the follow-up questions. [00:31:46] Speaker 01: That is not what is in the record. [00:31:48] Speaker 01: If you look at Manoa's first Instagram post, and I believe the complaint, what the allegations are, and what was represented by opposing counsel, [00:32:00] Speaker 01: Talbot recognized Minoa because he's a public, you know, he knows him as a climber in Bozeman. [00:32:06] Speaker 01: This was not that Minoa and Mr. Talbot struck up a conversation about their mutual like of climbing. [00:32:14] Speaker 01: Mr. Talbot approached Minoa. [00:32:17] Speaker 01: That's what is in the record. [00:32:19] Speaker 02: Because he recognized him, apparently. [00:32:21] Speaker 01: As a climber, not, well, okay. [00:32:23] Speaker 01: Well, as a black climber, and the first thing that he does, according to Manoa, is start asking about diversity. [00:32:29] Speaker 01: And then he won't listen to him when he's responding. [00:32:32] Speaker 01: So those are the facts. [00:32:35] Speaker 01: Manoa can decide if he believes that's racist. [00:32:38] Speaker 01: Because those facts are stated, the audience can decide whether they agree with the opinion. [00:32:43] Speaker 01: As the Herring case says, an audience is not going to look at a statement where the facts are disclosed and insinuate that there are other underlying facts. [00:32:54] Speaker 01: They can take the facts, look at the opinion, and decide whether they agree. [00:33:00] Speaker 01: The question of whether a racist statement can be, saying somebody made a racist statement can be true or false or as different than calling them a racist, I would direct the court to Stevens v. Tillman. [00:33:12] Speaker 01: This is the Seventh Circuit case from 1988. [00:33:14] Speaker 01: And it essentially says that, quote, racist, end quote, is an imprecise, valuated word that could be used to mean, quote, he is condescending to me, which must be because of my race, because there is no other reason to condescend. [00:33:29] Speaker 01: You know, this is a value-laden word based on a perception of Minowas. [00:33:34] Speaker 01: Talbot could disagree. [00:33:35] Speaker 01: You can disagree. [00:33:37] Speaker 01: But it is an opinion, and it is not provably true or false, which is the cornerstone of defamation law. [00:33:44] Speaker 01: If I could just quickly address the public concern issue on the anti-SLAPP statute. [00:33:52] Speaker 01: Talbot has made a point to try to wrangle the North Face into this case by saying that Ainu and the North Face are social justice warriors. [00:34:02] Speaker 01: He has alleged that Manoa uses his platform, his Instagram account, to make comments about what he believes is racism and for social justice. [00:34:10] Speaker 01: I don't think that they can now go and hide and say, well, this speech wasn't on a matter of public concern. [00:34:17] Speaker 01: If you look at the articles attached to the complaint to make this same point that the North Face and I knew are these social justice warriors in cahoots, CNN People Magazine have published articles about Manoa or his climbing, and they ask him questions where he says, [00:34:36] Speaker 01: I go climbing and people don't look at the equipment, they look that I'm a black climber. [00:34:41] Speaker 01: They don't see me as a climber and I want to change that. [00:34:45] Speaker 01: This is a microcosm of what he has been experiencing his whole life as a climber and to say that he cannot speak out about it because [00:34:53] Speaker 01: it was not asked by CNN or People Magazine, I think, does disservice to what the public concern is and what Washington law says where... Of course, that's only... But for that question, we may need to wait until we decide go from media on unblocked, right? [00:35:09] Speaker 01: I have not paid attention to that, so I would defer to co-counsel. [00:35:14] Speaker 01: Thank you. [00:35:25] Speaker 03: I want to speak briefly on this public concern issue because the question is, well, should we wait until en banc? [00:35:31] Speaker 03: I don't know that that's even necessary because I think when you look at Restatement Section 150, all the factors really do add up to applying Montana law. [00:35:40] Speaker 03: The one area where we agree is Restatement 150 does apply here. [00:35:44] Speaker 03: Now, it says that the plaintiff's domicile is usually the place where you choose the law where [00:35:51] Speaker 03: Also, the act of the defamatory communication occurs. [00:35:54] Speaker 03: Well, the act occurred in Montana. [00:35:57] Speaker 03: Also, if the act occurred in a different state than the plaintiff's domicile, but the plaintiff is only known as a domicile state and that's where all the damage occurred, well, then the plaintiff's domicile is the choice of law state. [00:36:12] Speaker 03: However, in this situation, it's neither of those, so you go down to the factors. [00:36:16] Speaker 03: And what do we look at? [00:36:17] Speaker 03: Well, the defendant's domicile is in Montana. [00:36:20] Speaker 03: Yes, the plaintiff's domicile is in Washington. [00:36:22] Speaker 03: Where is the plaintiff better known? [00:36:24] Speaker 03: Montana. [00:36:24] Speaker 03: He had only moved to Washington six weeks earlier. [00:36:27] Speaker 03: Where did the act of the communication occur? [00:36:30] Speaker 03: That occurred in Montana as well. [00:36:32] Speaker 03: Where was the communication [00:36:35] Speaker 03: Well, we don't really know where it was consumed or not because it's online. [00:36:40] Speaker 03: We don't know if it was Washington or Montana or Illinois. [00:36:43] Speaker 03: We don't know where his followers are based. [00:36:46] Speaker 03: And then finally, I don't know if I mentioned, iNews domicile is in Montana. [00:36:52] Speaker 03: With the exception of special damages, on that one, yes, you could say Washington is the area where special damages were the most impactful, because that's where his job was. [00:37:02] Speaker 03: But the rest of the factors all point to Montana. [00:37:06] Speaker 03: So I would suggest that we don't even need to get to the anti-SLAPP if, in fact, they were correct on the underlying issue, because Montana law applies, not Washington law. [00:37:17] Speaker 03: And with that, I [00:37:19] Speaker 05: I had just one actual question. [00:37:21] Speaker 05: I was curious if Talbot has brought an action against outdoor research for the termination. [00:37:27] Speaker 03: We did not. [00:37:28] Speaker 03: We certainly looked at that, but ultimately we were not able to. [00:37:32] Speaker 03: Well, thank you very much. [00:37:33] Speaker 03: If there's any more questions. [00:37:35] Speaker 05: Thank you, counsel. [00:37:36] Speaker 03: Thank you. [00:37:40] Speaker 00: I want to get to the two issues I didn't have time to when I stood up the first time. [00:37:45] Speaker 00: The first is why the North Face is not liable for speech by Mr. Anuwu. [00:37:51] Speaker 00: In any defamation case, the defendant must be a publisher. [00:37:55] Speaker 00: That's a term of art, and as to the statements at issue here, the North Face was not a publisher. [00:38:01] Speaker 00: Mr. Anuwu was, and it's conceded that he's an independent contractor for the North Face, and as such his role is very limited. [00:38:10] Speaker 00: The statements he posted here on his own profile, on Instagram, without mentioning the North Face, were entirely his own. [00:38:19] Speaker 00: The North Face doesn't direct or control the day-to-day speech of its sponsored athletes, and these statements were posted without its review, knowledge, oversight, or permission. [00:38:33] Speaker 00: Perhaps recognizing this, Mr. Talbot has relied on vicarious liability and a vague theory of agency. [00:38:41] Speaker 00: And Judge Nelson, you mentioned you're not aware of any vicarious liability case involving defamation, and neither are we. [00:38:49] Speaker 00: But even if you want to entertain the possibility that an independent agent [00:38:54] Speaker 00: An independent contractor can be an agent for purposes of a defamation case. [00:39:00] Speaker 00: Mr. Talbot just hasn't pleaded facts to support that theory. [00:39:04] Speaker 00: And the key case here is the Lokeva case, both at the District Court and at the Fourth Circuit. [00:39:09] Speaker 00: The District Court correctly relied on that case in holding that it's just not even plausible under Twombly that the North Face, a major corporation and a name brand retailer, [00:39:20] Speaker 00: would authorize the speech at issue here or even benefit from it? [00:39:24] Speaker 02: The only connection that I saw in the posts was the Instagram bio. [00:39:34] Speaker 02: I do not do social media, so I may be getting this wrong, but it looked like that had [00:39:40] Speaker 02: at the North Face in his description of himself. [00:39:48] Speaker 02: But I didn't see anything else. [00:39:49] Speaker 02: What is the import of that, if any? [00:39:53] Speaker 00: So nothing, and the look of a case addresses a similar fact involving a contributor to MSNBC. [00:39:59] Speaker 00: The way Instagram works is you have a profile where you can say lawyer, mother, you know, fisherwoman. [00:40:06] Speaker 00: And Mr. Anu's bio mentions the North Face because he's one of their sponsored athletes. [00:40:13] Speaker 00: But the post set issue here, and many, many, many of his posts on a day to day basis don't have anything to do with the North Face. [00:40:19] Speaker 00: or apparel at all. [00:40:22] Speaker 00: None of the posts here mentioned the North Face. [00:40:26] Speaker 00: And in fact, he sometimes tags competitors of the North Face, such as Patagonia. [00:40:31] Speaker 00: So I hope that answers your question. [00:40:33] Speaker 00: And I want to move to the anti-SLAPP law. [00:40:38] Speaker 00: We'll rely on the choice of law issue. [00:40:40] Speaker 00: We'll point you to our briefs. [00:40:43] Speaker 00: But the only issue on which the district court faltered is whether Washington's anti-SLAPP law applies. [00:40:52] Speaker 00: And the only question here is whether the speech was on a matter of public concern as defined by that statute. [00:41:00] Speaker 00: And I would point you to the JAW case, J-A-H, which interpreted Washington's anti-slap statute and found that the definition of public concern must be broadly construed. [00:41:13] Speaker 00: You can also look at the Connick case out of the U.S. [00:41:15] Speaker 00: Supreme Court and the Binkley case, which said even the slightest tinge of public concern counts. [00:41:23] Speaker 00: Inuu's statements really clear that low bar. [00:41:27] Speaker 00: And more than that, if you look at the allegations against the North face and the theory of vicarious liability that brought it into the case, which is a national social justice mission, that's an even easier decision. [00:41:43] Speaker 00: But if we start with Inuu, [00:41:45] Speaker 00: A couple of points. [00:41:47] Speaker 00: Labeling something as opinion, classifying it as opinion, doesn't take it out from the umbrella of what is a matter of public concern. [00:41:57] Speaker 00: And by the same token, using a personal story for illustrative purposes does not transform an issue of public concern into a personal gripe. [00:42:06] Speaker 00: The personal is political. [00:42:09] Speaker 00: and personal anecdotes like Mr. Anu shared are essential to understand nuanced, hard-to-grasp issues. [00:42:18] Speaker 00: When he stood up the first time, my opposing counsel made the point that Mr. Anu'u had gained fame and notoriety for trying to diversify the outdoor industry. [00:42:28] Speaker 00: He's a black man competing in a mostly white athletic endeavor, living in a mostly white part of our country. [00:42:35] Speaker 00: And this is a cause that's important to him. [00:42:38] Speaker 00: And that night after the crystal bar interaction was not the first time he's spoken about it. [00:42:43] Speaker 00: When he did speak about it on Instagram, he was trying to illustrate this issue of subtle rather than overt racism and corporate apathy toward it. [00:42:53] Speaker 00: Those are interests of public concern. [00:42:56] Speaker 00: Those are being written about. [00:42:57] Speaker 00: We know about how Budweiser and other brands have faced backlash for corporate wokeness or corporate non-wokeness. [00:43:04] Speaker 00: And you can have all kinds of opinions about whether corporations should engage in this sort of [00:43:10] Speaker 00: culture war, but it is a matter of public concern. [00:43:15] Speaker 00: And not only that, but Mr. Ainu didn't target some random guy. [00:43:19] Speaker 00: He targeted a man who works in the outdoor sports industry, and he actually targeted the employer. [00:43:27] Speaker 00: He called out outdoor research multiple times, and he said in these posts, my work is to change the outdoor industry. [00:43:36] Speaker 00: Finally your honor as to the north face it clearly clears the bar. [00:43:41] Speaker 00: I'm out of time. [00:43:42] Speaker 00: Can I finish my sentence? [00:43:45] Speaker 00: Because the only reason it's in this case is because of this national social justice mission that it has and Even if that does not suffice for vicarious liability It does get the north face under the public concern requirement of the Washington anti-slap statute. [00:44:01] Speaker 05: Thank you All right before we adjourn [00:44:04] Speaker 05: Mr. Pryor, she brought up an argument in rebuttal that she did not bring up in an earlier argument. [00:44:09] Speaker 05: I wanted to give you an opportunity, if you wanted to address the vicarious liability issue, I'll give you a couple minutes to do that. [00:44:19] Speaker 03: Sure, I'll just briefly address that. [00:44:20] Speaker 03: We did cite Montana law discussing vicarious liability with respect to the publication. [00:44:27] Speaker 03: We're not saying that they're vicariously liable because Mr. Burleson published or republished what I knew said. [00:44:34] Speaker 03: It's merely a brick in the evidence of [00:44:37] Speaker 03: What we think gets passed a motion to dismiss is North Face encouraging this kind of action against competitors to create newsworthy stories, allowing its sponsored athletes to engage in that, and then Mr. Ainu engages in that and his boss approves of it. [00:44:55] Speaker 03: Not that the publication itself triggers vicarious liability. [00:44:59] Speaker 04: Is it true that you said that your vicarious liability, or excuse me, your tortious interference claim rises or falls with the defamation claim? [00:45:09] Speaker 03: We believe it does under Montana. [00:45:11] Speaker 03: I mean, we did, we did simply because it needs a wrongful act unless there's another wrongful act that is on the face of- Why would the wrongful act be, I mean, wouldn't the wrongful act be targeting your employer? [00:45:22] Speaker 04: I mean, look, if you, if you said that, then I think we're done. [00:45:26] Speaker 04: But to me, [00:45:27] Speaker 04: You might have a vicarious liability claim on the tortious interference claim, but I don't see it on the defamation claim. [00:45:34] Speaker 03: Unless you can point us to something. [00:45:36] Speaker 03: No, I understand. [00:45:37] Speaker 03: And we'll rely on our briefs for the rest of that. [00:45:39] Speaker 03: If I can point to just one thing on the anti-SLAPP stuff, just briefly. [00:45:45] Speaker 03: I think what opposing counsel said was very important. [00:45:48] Speaker 03: She said, Mr. Talbot is who Mr. Inou targeted. [00:45:52] Speaker 03: Not a matter of public concern, a person. [00:45:55] Speaker 03: And I think that says it all. [00:45:56] Speaker 03: Thank you. [00:45:57] Speaker 05: I want to thank you both for your briefing and argument in a very interesting case. [00:46:01] Speaker 05: Excellent advocacy today. [00:46:02] Speaker 05: It's always good to see that in person. [00:46:05] Speaker 05: With that, we are adjourned for the day. [00:46:07] Speaker 05: We'll see everyone tomorrow. [00:46:08] Speaker 05: Thank you.