[00:00:00] Speaker 04:
So with that, I think Ms.

[00:00:04] Speaker 01:
Peterson, you're first?

[00:00:05] Speaker 01:
Yes, your honor.

[00:00:06] Speaker 01:
You may take it away.

[00:00:08] Speaker 01:
Thank you.

[00:00:09] Speaker 01:
May it please the court.

[00:00:10] Speaker 01:
My name is Tamara Beaty Peterson and I represent the appellants, the plaintiffs in the case below, Wealthy, Incorporated and Dale Butchkowski.

[00:00:19] Speaker 01:
With the court's permission, I'd like to reserve five minutes for rebuttal.

[00:00:23] Speaker 01:
Yes.

[00:00:23] Speaker 01:
Thank you.

[00:00:25] Speaker 01:
I'm gonna speak first about the appeal as to the Mulvihill Defendants.

[00:00:30] Speaker 01:
This court's in bonk decision in Briskin versus Shopify completely resolves all of the issues in the appeal regarding the Mulvihill Defendants.

[00:00:43] Speaker 01:
Briskin establishes that the district court did have specific personal jurisdiction over the Mulvihill Defendants.

[00:00:51] Speaker 01:
And so the district court erred in dismissing this case

[00:00:55] Speaker 01:
against the Mulvihill defendants.

[00:00:58] Speaker 01:
Mr. Mulvihill's statements, his defamatory statements, were made to a Nevada resident, Mr. Cornelia, while Cornelia was in Las Vegas, Nevada.

[00:01:09] Speaker 01:
So Mr. Mulvihill committed a tort in Nevada.

[00:01:12] Speaker 02:
The district court specifically found that Mulvihill- Well, he didn't commit the tort in Nevada.

[00:01:18] Speaker 02:
He committed the tort in Brazil, didn't he?

[00:01:20] Speaker 01:
No, he committed the tort in Nevada because the tort is complete upon publication.

[00:01:27] Speaker 01:
He could speak to himself all he wanted in Brazil.

[00:01:31] Speaker 01:
But when he published his statements to Cornelia, he committed the tort in Nevada.

[00:01:37] Speaker 01:
It's no different than the Fifth Circuit finding that a non-resident defendant who makes a phone call into Texas or Mississippi

[00:01:47] Speaker 01:
has committed the tort in those cases, in those states for purposes of specific personal jurisdiction.

[00:01:54] Speaker 01:
It's no different from a non-resident defendant sending a letter, a defamatory letter into Ohio where the Ohio court found that there was specific personal jurisdiction.

[00:02:05] Speaker 01:
The restatement for tort says specifically that the tort is committed upon publication,

[00:02:14] Speaker 01:
And it can be a single individual other than the one to fame.

[00:02:18] Speaker 05:
Ms.

[00:02:18] Speaker 05:
Peterson, does it make any difference where Bukowski or Moneyberg, whatever, wherever you prefer resides?

[00:02:29] Speaker 01:
Not for purposes of this, not for purposes of looking at this under Briskyn versus Shopify.

[00:02:36] Speaker 01:
Mr. Bukowski is a Nevada resident.

[00:02:38] Speaker 01:
We have maintained that the district court engaged in improper weighing of evidence and evaluative opinions about where he resided.

[00:02:48] Speaker 01:
But Briskin says that that contact, that digital contact is a relevant contact.

[00:02:56] Speaker 01:
And the Briskin court actually says too, you know, I want to just point something out that when the district court ruled

[00:03:06] Speaker 01:
He said, well, this was really only a statement to Cornelia, and it had a proverbial layover in Nevada before it went on to global application.

[00:03:16] Speaker 01:
But this court's decision in Briskin says that there is express aiming towards a forum when that person has contacts that are of its own choice and are not random, isolated, or fortuitous, even if that platform cultivates

[00:03:36] Speaker 01:
a nationwide audience.

[00:03:38] Speaker 01:
In this case, Moldahill deliberately and intentionally reached out beyond his home in Brazil and under the umbrella of his company so that he could have an interview

[00:03:50] Speaker 02:
Well, I guess I don't I don't quite see where the the something more is for Express aiming.

[00:03:56] Speaker 02:
I mean, Bristol makes clear while it's gotten rid of differential differential targeting that you still need something more.

[00:04:04] Speaker 02:
And all I've heard you really say is this happened to be the comments were spoken to someone who was in Nevada, but there was no what's the something more that Nevada is involved in?

[00:04:19] Speaker 01:
Well, I think Briskin actually makes the point that had, I think they say this in Bonk decision, that had someone surreptitiously entered the house in California and stolen that items, that that person would no doubt be subject to specific personal jurisdiction in California.

[00:04:40] Speaker 01:
This case is no different.

[00:04:42] Speaker 01:
Mulvihill was digitally connected, not once, but twice.

[00:04:46] Speaker 01:
His actions weren't random or fortuitous.

[00:04:49] Speaker 01:
They were intentional and certainly this court's decision in free stream says that if there is an intentional tort committed in the state, that that is dispositive on the first

[00:05:00] Speaker 01:
to issues for the minimum context.

[00:05:03] Speaker 02:
As you say, the language is that the connection to the foreign state must be something more than fortuitous.

[00:05:09] Speaker 02:
What I'm struggling with is it seems pretty fortuitous to me that Cornelia happened to be in Nevada, but he could have been in any other state when this was going on in terms of the nature of this interaction.

[00:05:22] Speaker 02:
And I don't see where it's going more than fortuitous with respect to Nevada.

[00:05:30] Speaker 01:
In the excerpts, we've referred to some WhatsApp messages between Mr. Mulvihill and Mr. Cornelia, where Mr. Mulvihill asked, where are you, Mr. Cornelia?

[00:05:41] Speaker 01:
And Cornelia said, I'm in Las Vegas, Nevada.

[00:05:45] Speaker 01:
So he knew this was not just logging on and wondering where he was, he knew where he was.

[00:05:52] Speaker 02:
Doesn't that support the contrary?

[00:05:54] Speaker 02:
He says, according to what you just told me, where are you?

[00:05:58] Speaker 02:
He didn't even know he was in Nevada before the conversation apparently happened.

[00:06:03] Speaker 02:
So how is that that he really cares at all whether or not Nevada is the person who he's speaking to?

[00:06:13] Speaker 02:
He says, where are you?

[00:06:15] Speaker 01:
Because he went forward with making his statements and committing that tort.

[00:06:20] Speaker 01:
And the district court found that Cornelia was digitally connected and was in Nevada.

[00:06:27] Speaker 01:
And that is dispositive on the issue.

[00:06:30] Speaker 05:
Did Movahill have any other direct contacts with Nevada?

[00:06:36] Speaker 01:
Mulvihill, well, he had been in Las Vegas previously.

[00:06:40] Speaker 01:
That was the subject of the discussions in the videos that he was the subject of an arrest here in Las Vegas.

[00:06:49] Speaker 01:
So he did have a prior contact with Nevada, certainly.

[00:06:53] Speaker 05:
And that was with Bukowski?

[00:06:57] Speaker 01:
That's correct.

[00:06:58] Speaker 01:
His defamatory statement was that somehow Mr. Bukowski had set him up for that before felony arrest that he had here in Nevada.

[00:07:07] Speaker 05:
Did Mobile Hill have any other contacts with Nevada?

[00:07:12] Speaker 01:
His business is not incorporated here.

[00:07:16] Speaker 01:
He's a resident of Brazil.

[00:07:21] Speaker 01:
But the contact that he had was the tort that he committed.

[00:07:24] Speaker 01:
If he had been on the edge of California and jumped over the state line to make his defamatory statements, we would certainly be considering him to have committed the tort here in Nevada.

[00:07:35] Speaker 01:
The fact that he's digitally connected is is dispositive on the issue because Briskin says that that's a relevant contact under Walden even that that's a relevant contact with the forum.

[00:07:49] Speaker 01:
If the panel doesn't have any other questions on the Mulberry Hill defendants, I'd like to move then to the appeal regarding the Cornelia defendants.

[00:08:01] Speaker 01:
The district court aired in finding that Mr. Butchkowski and his company, Wealthy, were limited purpose public figures.

[00:08:11] Speaker 01:
There is a three-pronged test that this court has identified

[00:08:15] Speaker 01:
to establish whether someone is a limited purpose public figure.

[00:08:20] Speaker 01:
And it's the Planet Aid test.

[00:08:22] Speaker 01:
The district court engaged in no analysis of any of those three factors.

[00:08:29] Speaker 01:
And I'd like to highlight just a couple of those factors.

[00:08:33] Speaker 01:
The first one that this court says should be considered is whether a public controversy existed when the statements were made.

[00:08:43] Speaker 01:
And Planet Aid instructs that it must be a real dispute, the outcome of which affects the general public or some segment of it.

[00:08:52] Speaker 01:
And Planet Aid cites to another case that says the issue has to have substantial and foreseeable ramifications for non-participants.

[00:09:03] Speaker 01:
The public controversy as well has to exist when the statements were made, but the district court

[00:09:08] Speaker 01:
It didn't identify any sort of public controversy, nor could it.

[00:09:13] Speaker 01:
There's nothing that is a real dispute, the outcome of which affects the general public or some segment of it.

[00:09:20] Speaker 01:
Additionally, under Planet A, the defamation has to be related to the preexisting controversy.

[00:09:26] Speaker 01:
Now, again, this is a difficult analysis when the district court didn't even give us a public controversy, but there was no analysis about how the defamation was related.

[00:09:37] Speaker 01:
to any such controversy, and certainly defamatory statements that Mr. Budzkowski manufactured or sold illegal drugs or was involved in the death of a woman or that he framed Mr. Mulvihill for his arrest.

[00:09:53] Speaker 01:
None of this has anything to do with any sort of pre-existing public controversy because there is no way that the district court could have found that he's a limited

[00:10:07] Speaker 01:
purpose public figure.

[00:10:09] Speaker 02:
Doesn't the record reflect though that these two are our competitors in some respects locked into a battle about whose services are better in this

[00:10:22] Speaker 02:
sort of, I guess, self-help life coach type of thing.

[00:10:26] Speaker 02:
And that pre-existed these statements.

[00:10:30] Speaker 02:
And this is a reflection of that ongoing dispute and controversy.

[00:10:34] Speaker 02:
So in this sphere of life coach or whatever we call it, aren't they figures of note?

[00:10:47] Speaker 01:
Well, the district court didn't engage in that analysis.

[00:10:51] Speaker 01:
I would agree that Cornelia and Mr. Budzkowski are certainly competitors, but the district court- How about Mr. Mulvey Hill?

[00:11:00] Speaker 02:
Does he provide any of these services as well?

[00:11:06] Speaker 01:
Yes, he does.

[00:11:09] Speaker 01:
But I wanted to discuss, though, that the district court merely found Mr. Budzkowski as a public figure

[00:11:17] Speaker 01:
because he was a business owner, because he owned a federally registered trademark, and because he has 23,000 subscribers on YouTube.

[00:11:28] Speaker 01:
And that is not sufficient, certainly not sufficient to be an all-purpose public figure, but I believe that appellees have waived that issue, but it's not sufficient to- Wasn't there, before all this happened, wasn't there some controversy about

[00:11:47] Speaker 05:
legitimacy of wealthies and the quality of Bukowski services?

[00:11:54] Speaker 01:
So the controversy was largely raised by Mr. Mulvihill.

[00:11:58] Speaker 01:
Now we did object in the district court below as to the admission of some evidence because the evidence that had been offered as a potential controversy was submitted

[00:12:15] Speaker 01:
that it was actually evidence that had occurred after.

[00:12:18] Speaker 01:
the defamation, and so under Planet Aid, there can't be a public controversy when the statements are made if there becomes a controversy later.

[00:12:29] Speaker 01:
So that is the issue, but Planet Aid still instructs that there has to be a real dispute, the outcome of which affects the general public, and there cannot, there's nothing that the district court identified, and there's no outcome that affects the general public in this case.

[00:12:45] Speaker 05:
Well, is there anything in the record that shows that there was a little,

[00:12:48] Speaker 05:
Uh, controversy over the company and Mr. Bukowski before all this happened.

[00:12:56] Speaker 01:
Uh, I think there's some Instagram posts.

[00:13:02] Speaker 01:
Um, you know, I, but again, I, you know, the Instagram posts, the post by Mr. Mulvihill, I'm not sure you can create your own.

[00:13:08] Speaker 01:
public controversy by defaming someone and then coming back in and saying there's a pre-existing controversy about your performance.

[00:13:17] Speaker 01:
So I think that's the problem here.

[00:13:22] Speaker 01:
With regards to this erroneous finding that Mr. Boczkowski and Wealthy were public figures, that was erroneous and as a result then the entire decision by

[00:13:35] Speaker 01:
the district court is in error because the district court analyzed the defamation claim and the business disparagement claim and the intentional infliction of emotional distress claim only under the actual malice standard.

[00:13:49] Speaker 01:
There would be no actual malice if they are not public figures and so that was also in error.

[00:13:58] Speaker 01:
I do want to address just a few things about the Lanham Act claim because the district court also

[00:14:05] Speaker 01:
aired in granting summary judgment on the Lanham Act claim.

[00:14:11] Speaker 01:
Under the Lanham Act, a person or business is liable for using promotion and advertising to disparage another entity to obtain business and profit.

[00:14:20] Speaker 01:
And for the definition of promotion and advertising, this court has adopted the four Eric's factors laid out in Eric's versus neutral search.

[00:14:31] Speaker 01:
The district court didn't analyze all four, only analyzed the first one,

[00:14:34] Speaker 01:
with regards to commercial speech.

[00:14:37] Speaker 01:
Now, Mr. Cornelia is in direct commercial competition with plaintiffs.

[00:14:43] Speaker 01:
Mr. Cornelia has his house hack expert manual and he has his mentorship services.

[00:14:49] Speaker 01:
And plaintiffs have their real estate riches program and their related mentorship services.

[00:14:54] Speaker 01:
But the district court, when he analyzed the Lanham Act claim, just very simplistically said that because the two videos didn't mention Cornelia's own products,

[00:15:04] Speaker 01:
that commercial speech did not exist.

[00:15:07] Speaker 01:
Now this is error because the statutory language refers to any person who in commercial advertising or promotion misrepresents the nature, characteristics, qualities of his or another person's goods or services.

[00:15:23] Speaker 01:
There's no requirement that the speech has to only reference the speaker's own products in order to bring it within the Lanham Act.

[00:15:33] Speaker 01:
And I do see I have five minutes remaining.

[00:15:35] Speaker 01:
If there are any questions for the panel, I'm happy to answer them.

[00:15:39] Speaker 01:
Otherwise I'd like to reserve the remaining for rebuttal.

[00:15:42] Speaker 04:
You got it.

[00:15:42] Speaker 04:
We'll reserve that time.

[00:15:43] Speaker 04:
We'll hear from you a little bit.

[00:15:45] Speaker 04:
Thank you.

[00:15:51] Speaker 04:
All right, go ahead Ms.

[00:15:53] Speaker 04:
Green.

[00:15:53] Speaker 00:
Thank you, your honor.

[00:15:54] Speaker 00:
May it please the court.

[00:15:55] Speaker 00:
My name is Renee Green and I represent John Mulvihill and John Anthony Lifestyle LLC.

[00:16:02] Speaker 00:
From here on out, I will refer to them as the Mulvihill defendants.

[00:16:07] Speaker 00:
The question here before the court today, as it relates to our appeal, is even after the Briskin versus Shopify decision, is whether Nevada may exercise specific jurisdiction over a dispute where neither the defendants nor their plaintiffs reside there.

[00:16:23] Speaker 00:
and also where the Mulvihill defendants alleged conduct has no meaningful connection today.

[00:16:28] Speaker 00:
Even after the Briskin decision, the answer to that question is no.

[00:16:34] Speaker 00:
Walden was not overturned and the Calder effect test still applies to this day.

[00:16:40] Speaker 00:
So with the Calder test, plaintiffs must prove that the non-resident defendants, being the Mulvihill defendants,

[00:16:47] Speaker 00:
purposefully directed their activities to consummate some transaction with the form or the resident thereof.

[00:16:54] Speaker 00:
Now, throughout the entire action, Mr. Baskowski initially claimed he was a Nevada resident, specifically he was a resident of Incline Village.

[00:17:02] Speaker 00:
However, upon receiving evidence that said otherwise, Mr. Byskowski finally admitted that that was untrue.

[00:17:11] Speaker 00:
So now that we know that we are not dealing with a Nevada resident as the plaintiff was in Briskin versus Shopify, now we turn as to whether the defendants created sufficient... Why is it so significant that he has to be a resident of Nevada?

[00:17:25] Speaker 00:
It's not significant, but what it would show is that Movahill's defendants

[00:17:31] Speaker 00:
Directed their activity towards Nevada being a Nevada resident and that would fall more in line with the with the Walden test where the harm would have been theoretically created in Nevada.

[00:17:46] Speaker 00:
However, that's not the case here and it would have supported more of a finding a specific jurisdiction, but that's

[00:17:52] Speaker 00:
But that's not the case.

[00:17:54] Speaker 00:
Not only was he not a resident, but also the Mulvihill defendants now returning to them, they did not have sufficient contacts here with Nevada.

[00:18:01] Speaker 02:
In your view that the tort, there was no tort committed, but if there was a tort committed, was it committed in Brazil or in Nevada?

[00:18:13] Speaker 00:
Correct, Your Honor.

[00:18:13] Speaker 00:
And that's where we believe that plaintiffs conflate where the reputational injury had become.

[00:18:21] Speaker 00:
Plaintiffs are claiming the reputational injury occurred in Nevada.

[00:18:24] Speaker 00:
The reputational injury in that sense occurred really nationwide.

[00:18:27] Speaker 00:
The question is, and the reason why plaintiffs sued defendants was because of the final publication, the ultimate distribution of data, not because that it had a conversation with Cornelia, who happened to be in Nevada.

[00:18:41] Speaker 00:
And that's really important.

[00:18:43] Speaker 00:
And even the Ninth Circuit determined that in Keaton.

[00:18:46] Speaker 00:
And Keaton, which was dealing with a put with a Hustler magazine publication, it did not look to the paper distributor where the Hustler magazine obtained the print paper or the company that printed it.

[00:19:01] Speaker 00:
What it determined was whether the defendant had some level of control over the ultimate distribution of its products beyond simply placing the products in the stream of commerce.

[00:19:12] Speaker 00:
So the reputational injury as we are here today is because of a YouTube posting, not because of a conversation with Cornelia.

[00:19:21] Speaker 00:
The YouTube posting, unlike the action that occurred in Shopify, was placed on a passive website.

[00:19:29] Speaker 00:
Um, in shop and risking versus Shopify, Shopify was a web-based company where, where as the Mulvihill defendants were not.

[00:19:37] Speaker 00:
Um, and they had personally and physically installed cookies onto California residents phones.

[00:19:45] Speaker 00:
In contrast, this was an individual who had a conversation with another individual and passively, um, published the, um, YouTube, uh, the posting on YouTube.

[00:19:56] Speaker 00:
As indicated when posting it on YouTube, the Mulvihill defendants did not have some level of control over the ultimate distribution of who was going to watch it.

[00:20:05] Speaker 00:
In fact, anyone in the world could have watched it.

[00:20:09] Speaker 00:
And in risk and versus Shopify, Shopify conceded and the reason the Ninth Circuit reversed its earlier decision and found specific jurisdiction was that

[00:20:21] Speaker 00:
It stated that quote as its regular course of business Shopify is alleged to target California consumers to extract collect maintain distribute and exploit the mobile hill defendants did not collect any information from the customers.

[00:20:35] Speaker 00:
It didn't distribute any information to the customers.

[00:20:39] Speaker 00:
and it didn't personally enter and extract data.

[00:20:41] Speaker 05:
Well, they had a lot, and Movahill had a lot to say, though, about Wealthy and Mr. Bukowski, correct?

[00:20:49] Speaker 00:
I do agree, Your Honor.

[00:20:49] Speaker 00:
He had a lot to say.

[00:20:51] Speaker 05:
And they alleged that it was defamatory.

[00:20:53] Speaker 00:
They alleged it was defamatory.

[00:20:56] Speaker 05:
You know, harmed his reputation.

[00:21:00] Speaker 00:
Yes, Your Honor.

[00:21:01] Speaker 00:
Baskowski alleges that it harmed his reputation when he claimed he was a Nevada resident when he was not.

[00:21:08] Speaker 00:
As I indicated, this was a passive website.

[00:21:11] Speaker 05:
Are you saying that he'd only be injured in Nevada?

[00:21:14] Speaker 00:
No, he couldn't only be injured in Nevada.

[00:21:16] Speaker 00:
The question is, though, that defendants didn't have the requisite connection to Nevada in order to be hailed into court into Nevada.

[00:21:25] Speaker 00:
And that's where, like we're saying, even with briskin today, it still stands that a passive website alone pursuant to cyber cell does not create enough to hail somebody into another court where they're not a resident.

[00:21:43] Speaker 02:
Does that mean that there would be no place that this case could be brought?

[00:21:48] Speaker 00:
No, and that goes into, and I did kind of gloss over the first one.

[00:21:52] Speaker 00:
The second one is in regards to the connections to Nevada.

[00:21:55] Speaker 00:
There are no connections, the ones with Cornelia's happenstance.

[00:21:58] Speaker 00:
So now we're going into the third one, is that jurisdiction in Nevada is unreasonable.

[00:22:03] Speaker 00:
I think as we sit here today, it's easy to see that jurisdiction could have been asserted somewhere else.

[00:22:10] Speaker 00:
Mr. Baskowski himself, after

[00:22:11] Speaker 00:
the court dismissed the action in Nevada brought this nearly identical action in Wyoming, where jurisdiction would have been more proper.

[00:22:22] Speaker 00:
Wyoming is where one of Mobile Hill's entities is incorporated.

[00:22:28] Speaker 00:
There are other jurisdictions, it's being litigated to this day.

[00:22:31] Speaker 00:
So asserting it in Nevada when there's no resident or Mobile Hill's not a resident, Muszkowski's not a resident nor his company,

[00:22:38] Speaker 00:
coupled with the fact that the defendant had no meaningful connections here in Nevada, makes the jurisdiction in itself unreasonable.

[00:22:48] Speaker 00:
And Your Honor, I would like to reserve three minutes.

[00:22:53] Speaker 00:
If there are any questions, I would like to reserve the three minutes for rebuttal.

[00:22:58] Speaker 04:
And rebuttal as to which issue?

[00:23:01] Speaker 00:
As it only relates to the motion to dismiss matter, the jurisdiction.

[00:23:05] Speaker 04:
Okay, all right, understood.

[00:23:07] Speaker 04:
Okay, thank you.

[00:23:18] Speaker 03:
May it please the court.

[00:23:19] Speaker 03:
I am Mark Randazza here on behalf of Mr. Cornelia.

[00:23:25] Speaker 03:
This case is about abusing the litigation process to suppress journalism when the subject does not find the coverage flattering.

[00:23:35] Speaker 03:
And investigative reporting in this circuit is at stake.

[00:23:40] Speaker 03:
Now, the first issue I want to address is the public figure status.

[00:23:44] Speaker 03:
If you look in the record, we have

[00:23:47] Speaker 03:
magazine coverage about Mr. Butchkowski's services and goods, beginning in Entrepreneur Magazine, Entrepreneur India, Hote Living, Tech Buzz, The Jerusalem Post, lastly, Playboy, Maxim, all of this prior to anybody saying anything about Mr. Butchkowski, The Baltimore Post Examiner, Business Insider, California Herald, Disrupt Magazine, FHM,

[00:24:14] Speaker 03:
Bits of journalism after journalism, discussions on Reddit.

[00:24:18] Speaker 03:
This guy was not just a public figure, but willingly so.

[00:24:23] Speaker 05:
Now this debate, this dispute, this... Was there any, in your view, was there any controversy about him or was that just all good, good promotional advertisement?

[00:24:32] Speaker 03:
Well, there's a lot of controversy about him on Reddit.

[00:24:34] Speaker 03:
There was a lot of controversy about him and that's in the record.

[00:24:37] Speaker 03:
The record is replete with examples of this controversy about him.

[00:24:43] Speaker 05:
Is he... Explain to me, in your view, what was the controversy?

[00:24:47] Speaker 03:
Mr. Mulvihill and he were already in a dispute about these facts.

[00:24:53] Speaker 03:
Mr. Mulvihill was outspoken about him prior to this.

[00:24:56] Speaker 03:
That's why he was being interviewed by Mr. Cornelia.

[00:25:00] Speaker 03:
Mr. Cornelia has a journalism program here where he looks at people and he says, is this a real guru or a fake guru?

[00:25:08] Speaker 03:
One of the things they sued over was him being called a fake guru.

[00:25:12] Speaker 03:
That's not a statement of objective fact that can even be an issue for a defamation case.

[00:25:19] Speaker 03:
But there would be no reason to interview Mr. Mulvihill but for the fact that he is the most outspoken authority about Mr. Bushkowski.

[00:25:28] Speaker 02:
Well, I guess I'm wondering where the line is.

[00:25:32] Speaker 02:
If Mr. Bukowski here is a limited purpose public figure, I'm not sure where we draw the line.

[00:25:40] Speaker 02:
Who isn't a limited public figure?

[00:25:43] Speaker 02:
A limited purpose public figure.

[00:25:45] Speaker 02:
I mean, he's he's not particularly as I understand the record some prominent person in generally in the community.

[00:25:53] Speaker 02:
There are a plethora of podcasts and interviews these days.

[00:25:58] Speaker 02:
If you're if you're involved in any of those things, do you automatically become a limited purpose public figure?

[00:26:05] Speaker 03:
Well, public figure status is contextual, Judge Seaborg.

[00:26:09] Speaker 03:
So in, for example, in Nevada, if there was a Supreme Court case that dealt with a member of the thrifting community, we're talking about this little tiny community of people and somebody who's well known within it.

[00:26:22] Speaker 03:
Mr. Bushkowski has been one of these online selling his expertise people for about half a generation, starting competing with Mr. Maldihill or at the same time as Mr. Maldihill in the so-called pickup artist sphere.

[00:26:38] Speaker 03:
He then took that and turned it into wealth investing.

[00:26:42] Speaker 02:
Well, it may well be, I'm not saying this, maybe this is the case, but it seems to me that under that sort of definitional construct,

[00:26:51] Speaker 02:
more people are limited purpose public figures than people who are not.

[00:26:55] Speaker 02:
I mean, I just, I'm wondering where, and maybe that's the way the world is going, but where are the limits?

[00:27:04] Speaker 03:
I mean, I don't think that this case needs to define the limits of what makes somebody a public figure or not.

[00:27:10] Speaker 03:
I think if they look at Mr. Butchkowski, in this case, on this record, there was a years long debate about whether this guy was

[00:27:19] Speaker 03:
full of it or not, millions of Instagram followers, dozens of press articles.

[00:27:25] Speaker 03:
Wherever that line is, he blew past it years ago and he is well within it, criticizing his goods and services, something that he spends a lot of effort marketing himself for.

[00:27:38] Speaker 03:
I mean, it's like saying a business that buys advertising, you can't argue that it's advertising isn't true.

[00:27:46] Speaker 02:
It simply says- Let me ask you, if you

[00:27:48] Speaker 02:
If you're not in the world of a limited purpose public figure and there is no actual malice requisite, do you still have an argument that this shouldn't have proceeded in district court?

[00:28:01] Speaker 03:
I don't think that any reasonable juror could even find that this was negligent reporting.

[00:28:07] Speaker 03:
Mr. Cornelia interviewed somebody.

[00:28:12] Speaker 03:
He found him credible.

[00:28:14] Speaker 03:
Despite that fact, he checked up on him.

[00:28:17] Speaker 03:
The record shows that he interviewed trusted associates to get more information about him.

[00:28:22] Speaker 03:
He found no reason that he wouldn't be credible.

[00:28:25] Speaker 03:
There was no reason to doubt anything that Mr. Mulvihill said.

[00:28:30] Speaker 03:
So yes, if in some strange world, someone with millions of followers, millions of viewers,

[00:28:38] Speaker 03:
Just dozens and dozens of articles about him, both earned and bought media, isn't a public figure.

[00:28:46] Speaker 03:
You're changing the scope of public figure law in the Ninth Circuit, if you find that.

[00:28:50] Speaker 03:
But even if you do, there's no way he's even going to be able to show negligence.

[00:28:55] Speaker 03:
But the fact is here, there was absolutely no way that any reasonable juror could have met the standard

[00:29:02] Speaker 03:
for defamation.

[00:29:04] Speaker 03:
Now, I will say there is, while it doesn't matter what the lower court said, you're here on de novo review, there is one error that it met, that it made, that I'd like to point your attention to, and that is there is a lack of actual malice here.

[00:29:22] Speaker 03:
Not only because there was even a lack of negligence, but most of these statements are statements of opinion based on disclosed facts.

[00:29:32] Speaker 03:
So Mr. Movahill is on camera, says, this is what I think for that reason.

[00:29:36] Speaker 03:
That's a disclosed fact.

[00:29:39] Speaker 03:
Somebody else can make their own opinion about that.

[00:29:42] Speaker 03:
Mr. Cornelia stated that at the beginning of the broadcast as the record shows.

[00:29:47] Speaker 03:
that everything here was merely allegations.

[00:29:51] Speaker 03:
Do your own research.

[00:29:52] Speaker 03:
But every bit of opinion here was based on a disclosed fact.

[00:29:58] Speaker 03:
But if you do not find actual malice, you must also find that Mr. Cornelius satisfied prong one of the Nevada anti-slap statue.

[00:30:09] Speaker 03:
All right, that standard as shown in Rosen versus Tarkanian is an even easier standard for a defendant than actual malice.

[00:30:19] Speaker 03:
Actual malice, as you are all aware, requires knowing falsity, we don't have that, or a reckless disregard for the truth.

[00:30:27] Speaker 03:
We don't even have negligence, much less recklessness.

[00:30:30] Speaker 03:
Under prong one of the anti-slap statute, even recklessness is permitted.

[00:30:35] Speaker 03:
Good faith means true or without knowledge of its falsity, even allowing recklessness.

[00:30:43] Speaker 03:
The other issue that I'd like to address is this commercial speech issue.

[00:30:48] Speaker 03:
the fact that it's being called false advertising.

[00:30:52] Speaker 03:
It's simply absurd and part of a disturbing trend that I've seen as a defamation defense attorney that plaintiffs are trying to do to try to call anything that they want to bring as a defamation case as false advertising.

[00:31:07] Speaker 03:
The best example not in this circuit is the Tobinic versus Novella case, which we cited.

[00:31:14] Speaker 03:
in that situation here.

[00:31:16] Speaker 03:
What you have here is the speech has to be an advertisement.

[00:31:20] Speaker 03:
This court adopted a definition that includes that the speech must be made for the purpose of influencing customers to buy the defendant's goods and services.

[00:31:30] Speaker 03:
If you look at this interview, there's nothing in here trying to say you should come and buy Mr. Cornelia's pamphlet that he put out a year or so before.

[00:31:39] Speaker 03:
A simple motive to sell copies of a publication or to obtain an incidental economic benefit without more doesn't make it commercial speech.

[00:31:50] Speaker 03:
If you look at Eric's versus NutriSearch Corp, the type of economic motivation is not the focus.

[00:31:56] Speaker 03:
The crux is on whether the speaker had an economic motivation, so the economic benefit of selling some other services was the primary purpose of speaking.

[00:32:05] Speaker 03:
It's an intent to influence consumers to come to Mr. Cornelia's services.

[00:32:10] Speaker 03:
Mr. Cornelia did want consumers to come to his YouTube channel, but to watch and learn about what he had investigated and found.

[00:32:19] Speaker 03:
You know, if we adopt their view, it would mean that no journalist could discuss anything at any time prior to them practicing journalism.

[00:32:27] Speaker 03:
That's even more absurd than Tobinic versus Novella.

[00:32:30] Speaker 03:
If you have any questions, I'd be glad to answer them.

[00:32:33] Speaker 03:
Otherwise, I'd like to reserve the rest of my time on my Prong One argument for rebuttal.

[00:32:38] Speaker 03:
Very well.

[00:32:39] Speaker 03:
Thank you.

[00:32:47] Speaker 01:
Thank you, Your Honor, Tammy Peterson again for the appellants.

[00:32:52] Speaker 01:
Let me address my colleagues, Ms.

[00:32:54] Speaker 01:
Green's comments about the Mobile Hill defendants.

[00:32:57] Speaker 01:
I do want to clarify the United States Supreme Court has certainly said in Keaton versus Hustler that a plaintiff in a defamation case does not need to be a resident of the forum.

[00:33:07] Speaker 01:
And so it is not some separate requirement that needs to occur before a defamation

[00:33:15] Speaker 01:
and business disparagement claim can be brought against the bad actor.

[00:33:20] Speaker 01:
Now, I heard my colleague suggest that this was some sort of a passive website that Mr. Mulvihill was participating in.

[00:33:32] Speaker 01:
That is not correct.

[00:33:33] Speaker 01:
The record reflects that he sought out Mr. Cornelia to appear on his

[00:33:39] Speaker 01:
series on his YouTube channel.

[00:33:41] Speaker 01:
He wanted to be recorded.

[00:33:43] Speaker 01:
He wanted to say these things.

[00:33:45] Speaker 01:
He asked where Cornelia was located.

[00:33:47] Speaker 01:
He found out he was in Las Vegas.

[00:33:49] Speaker 01:
He even asked Cornelia if Cornelia had insurance for defamation.

[00:33:53] Speaker 01:
And then he got on a video and he said that these defamatory statements not once, but twice.

[00:34:04] Speaker 01:
The argument that somehow this, it would be unreasonable to exercise jurisdiction over the Mulvihill defendants.

[00:34:11] Speaker 01:
Actually, we don't really have a reason in the briefing below or a reason today why it is unreasonable to exercise jurisdiction over the Mulvihill defendants in Nevada.

[00:34:20] Speaker 01:
What we have is a statement that Mr. Mulvihill doesn't reside here.

[00:34:26] Speaker 01:
in a statement that there is some factual disputes about Mr. Butchkowski's resident.

[00:34:30] Speaker 01:
That is not enough to say that it is unreasonable to exercise jurisdiction over a non-resident defendant.

[00:34:39] Speaker 01:
The tort was committed when the defamatory statements were made and published.

[00:34:46] Speaker 01:
I want to address a few of my colleagues' comments with regards to public figure status.

[00:34:52] Speaker 01:
And first, I want to be clear, there's no finding

[00:34:56] Speaker 01:
that Mr. Butchkowski is somehow a celebrity or a public official or a household name.

[00:35:01] Speaker 01:
And in fact, in the briefing below, the Cornelia defendants didn't assert that he was an all-purpose public figure.

[00:35:08] Speaker 01:
So there's no possible finding there.

[00:35:12] Speaker 01:
In fact, it was Mr. Cornelia, and this is in the excerpts, who testified in his deposition that Mr. Butchkowski was not generally known.

[00:35:20] Speaker 01:
And I think to Judge Seberg's comment,

[00:35:24] Speaker 01:
or question that if Mr. Butchkowski is a limited public purpose figure, then it is an unworkable standard for any district court to determine.

[00:35:37] Speaker 01:
Because I guess if you own a business here in America, then you are a limited public purpose figure, and that is not a workable standard.

[00:35:45] Speaker 01:
The standard that was set forth in this court's decision in Planet Aid

[00:35:50] Speaker 01:
Explains what what must be set forth and those things were not met.

[00:35:55] Speaker 01:
There was no public controversy.

[00:35:57] Speaker 01:
I did hear my colleague assert that there was that Mr Cornelia somehow found.

[00:36:07] Speaker 01:
I want to be clear about this.

[00:36:12] Speaker 01:
Cornelia didn't publish what wasn't engaging in some live video.

[00:36:17] Speaker 01:
He recorded these two videos and then edited them for hours and then posted them on his YouTube channel where he sells his own products.

[00:36:26] Speaker 01:
his competing services on the same channel.

[00:36:29] Speaker 01:
But this idea that he was somehow credible is just belied by the record.

[00:36:34] Speaker 01:
Mr. Cornelia's sum total of his research was that he didn't research the educational background of Mr. Budzkowski because he thought that was irrelevant.

[00:36:44] Speaker 01:
And he thought that it was enough to say that Larson Consulting was money laundering because it didn't have any Facebook page content

[00:36:52] Speaker 01:
and it only had one officer and it didn't have any signage.

[00:36:56] Speaker 02:
On those two alleged defamatory comments, are they subject to the argument that they're just opinion with respect to his University of Chicago degree, whether or not it was a full-fledged degree, and then the question about he thinks this company could be money laundering and has the indicia of that.

[00:37:20] Speaker 02:
Aren't those opinion statements?

[00:37:22] Speaker 01:
Well, the statements all together would lead a reasonable listener to think that Mr. Vickowski had been defamed, had been injured in terms of

[00:37:37] Speaker 01:
Um, his, uh, his business, but I just want to point out that the Nevada Supreme court has said and Miller versus Jones, that if a statement is susceptible of multiple interpretations, one of which is defamatory, then if there's any ambiguity about whether or not it's opinion, that should be resolved by the trial of fact.

[00:37:57] Speaker 01:
And I see my time has expired.

[00:37:59] Speaker 01:
So, um, thank you.

[00:38:05] Speaker 04:
Your honors, thank you.

[00:38:07] Speaker 04:
Yeah, I'm muted.

[00:38:07] Speaker 04:
Sorry about that.

[00:38:08] Speaker 04:
I just want to say thank you, Miss Peterson.

[00:38:10] Speaker 04:
And I think Miss Green is actually next.

[00:38:13] Speaker 04:
And then we'll get to you, Mr. Randazzo.

[00:38:16] Speaker 00:
Yes, thank you, Your Honor.

[00:38:18] Speaker 00:
As stated, like I said, on behalf of Mobile Hill Defendants, we are only arguing the motion to dismiss as that was on appeal.

[00:38:25] Speaker 00:
So I do want to just clarify that.

[00:38:27] Speaker 00:
However, I did want to state, as it relates to the Calder Effect Test, that although the plaintiff does not need to be a resident of the forum state, which seems to be conceded here,

[00:38:38] Speaker 00:
There's a specific jurisdiction ever existed because the Mulvihill defendants did not have sufficient contact with Nevada.

[00:38:46] Speaker 00:
So I do want to state that, that it's clear.

[00:38:50] Speaker 00:
Plaintiffs or Wachowski is attempting to strap on the contacts by trying to claim Cornelia as a resident.

[00:38:58] Speaker 00:
However, the court in Morrill versus Scott Financial Corporation has held

[00:39:04] Speaker 00:
that defendant's contacts with the person who resides there are insufficient to still establish specific jurisdiction.

[00:39:13] Speaker 00:
As stated, even the new ruling in Briskin versus Shopify does not change the district court's analysis in this case, because in Briskin versus Shopify, we are dealing with a web-based company where the Mulva Hills were not, who extracted data from the customers.

[00:39:30] Speaker 00:
Um, this case is still more akin to cyber cell versus cyber cell, which is still, um, good law here in the ninth circuit where, um, there was a passive advertisement that anyone could access.

[00:39:43] Speaker 00:
And that's what happened when it hit the stream of commerce.

[00:39:46] Speaker 00:
The Mulvihill defendants did not have the ability to control who would see this video.

[00:39:52] Speaker 00:
after it entered the stream of commerce.

[00:39:54] Speaker 00:
And that's what Keaton specifically points to as to whether some level of control existed over the ultimate distribution of its products beyond simply placing its product in the commerce.

[00:40:08] Speaker 00:
And that with these basis of facts did not occur in this case.

[00:40:12] Speaker 00:
So as a result, the cyber cell case is akin to this matter.

[00:40:16] Speaker 00:
In addition to the Marvix analysis,

[00:40:19] Speaker 00:
from when it says that a passive website that merely hosts information does not qualify as purposeful activity invoking the benefits and protections in which the website can be viewed.

[00:40:32] Speaker 00:
I also wanted to just indicate as well that there are many reasons as to why a certain jurisdiction here in Nevada is unreasonable.

[00:40:40] Speaker 00:
It has been a burden on defendant to be hailed into a court from which he has no contacts with and very expensive.

[00:40:48] Speaker 00:
Also too, there are other jurisdictions who are better served, as I indicated, Wyoming, even where Bushkowski lives, which is likely Illinois, who have a more of an interest in adjudicating this dispute as well.

[00:40:59] Speaker 00:
And I don't have any other questions, Your Honor, that is my time.

[00:41:06] Speaker 04:
All right, thank you, counsel.

[00:41:07] Speaker 04:
And we'll wrap up with Mr. Randazzo.

[00:41:10] Speaker 03:
Thank you.

[00:41:11] Speaker 03:
Your honors, for the public figure issue, an aggressive advertising campaign that invites public attention, comment, and criticism establishes public figure status.

[00:41:22] Speaker 03:
That's Make F versus Trump from this court.

[00:41:24] Speaker 03:
Planet Aid versus Reveal, same.

[00:41:26] Speaker 03:
Finding a plaintiff was a public figure by actively seeking attention from the press, promoting themselves through social media, employing PR staff, and soliciting donations.

[00:41:36] Speaker 03:
We have all that here.

[00:41:38] Speaker 03:
The plaintiffs allege themselves into public figure status.

[00:41:41] Speaker 03:
23,000 YouTube subscribers, 1.2 million views, 136,000 other subscribers.

[00:41:48] Speaker 03:
4 million people follow him on Instagram.

[00:41:51] Speaker 03:
So this aggressive campaign resulting in dozens of articles about the plaintiff shows him as a public figure for these purposes.

[00:42:01] Speaker 03:
Once you get there,

[00:42:03] Speaker 03:
I'm sorry.

[00:42:05] Speaker 03:
Finish your thought.

[00:42:06] Speaker 03:
Once you get there, it's easy.

[00:42:09] Speaker 03:
Bose requires that you show by clear and convincing evidence that a reasonable juror could find that you overcame actual malice.

[00:42:19] Speaker 03:
You could not do that.

[00:42:21] Speaker 03:
And therefore, when you look at this case in the lens of the anti-slap statute,

[00:42:26] Speaker 03:
We have easily satisfied prong one and the lack of supportability of the case itself satisfies prong two.

[00:42:33] Speaker 03:
The decision here should show that there is no Lanham Act claim.

[00:42:37] Speaker 03:
There is no defamation claim.

[00:42:39] Speaker 03:
We've satisfied prong one and we've satisfied prong two.

[00:42:43] Speaker 03:
Thank you very much.

[00:42:44] Speaker 04:
I want to thank all counsel for their briefing and argument and their patience as we finally got this case argued.

[00:42:50] Speaker 04:
This matter is submitted and this special panel for today is adjourned.

[00:42:55] Speaker 04:
Thank you.

[00:42:56] Speaker 01:
Thank you, Your Honors.

[00:43:00] Speaker 01:
This court for this session stands adjourned.