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Case number 19-7132 Edel, Christiana Tau and Randolph McLean, Appellants versus Global Witness Publishing, Inc.

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and Global Witness.

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Mr. Smola for the Appellants, Mr. Bowman for the Appellees.

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Good morning.

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Good morning, Councilman.

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Mr. Smola, we'll hear from you when you're ready.

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You need to unmute yourself and you can proceed.

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Good morning, Your Honors.

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May it please the Court?

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I am Rodney Smola on behalf of Christiana Taw and Randolph McLean.

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Your Honors, this appeal is more about the integrity of the federal rules than about the First Amendment.

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The District Court below analyzed all of the issues pending in this case and ruled in favor of

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and McLean on all of them except the final one, the actual malice plausible plea question.

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And I'll focus my initial attention and most of my attention in this argument on that final issue.

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The question before the court is whether the complaint plausibly alleges actual malice, as that term is defined by the various First Amendment standards

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and as that term is defined, as the word plausible is defined by the landmark decisions in Bell Atlantic Corporation versus Twomley and Ashcroft versus Iqbal.

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Twomley and Iqbal tell us that the word plausible means more than a possibility, but less than a probability.

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But more than that,

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Twombly and Iqbal are very articulate in describing the sorts of things that will not do and the sorts of things that will push the plaintiff over the plausibility line.

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So what will not do?

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What's not good enough?

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Threadbare allegations are not good enough.

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Legal conclusions are not good enough.

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formulaic recitals of the elements of a claim are not good enough, and the mere invocation of buzzwords is not good enough.

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So what will do?

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What is required?

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Well, what's required is that the plaintiff set forth sufficient factual detail that the legal elements of the claim might plausibly be proven.

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Critically, it's not necessary

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that the complaint prove the allegations.

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Of course not.

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It's not necessary that the complaint even show that there's a probability that the allegations would prevail.

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All that's required is a probability.

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And we think on this score, the district court below simply analyzed the case through the wrong prism.

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I want to commend to the court

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two very revealing sentences in the district court's opinion that we think show the mindset that got off the track here as the district court analyzed the complaint.

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The first comes at the very beginning of the district court's analysis of actual malice, and the second comes at the very end of that analysis in the very end of the opinion.

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The district court said at the beginning, and I'll quote it directly,

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Quote, without more than is mustered here, there is not clear and convincing evidence that global witness was aware that its story was fabricated or too improbable to fabricate.

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And then at the end of the opinion, the district court says, without clear and convincing evidence of actual malice and only strands of evidence, plaintiff's pleadings fail to meet their burden.

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Well, that is the sort of language one would have expected on a ruling under a Rule 56 summary judgment motion.

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Mr. Small, why don't you focus for us on which allegations in the complaint you think are the most significant in terms of meeting your burden of proving manless or alleging manless?

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Your Honor, we have... Instead of focusing on the district court's language, tell us which allegations should we look at that you think satisfy your burden of alleging, adequately alleging manless?

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Your Honor, the overarching theory of our complaint, buttressed by multiple allegations, and I should say, Your Honor, in 20 paragraphs and eight pages of text in the complaint, the arching theme is that from the very beginning, global witness was fixated

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on a story that was going to be alleging that Exxon facilitated or was complicit in bribery.

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And it did so when Rex Tillerson, who had now become Secretary of State under President Trump, was in control of Exxon.

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Well, isn't that the way investigative journalism works?

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They start out with a hypothesis.

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And of course, that's true, Your Honor.

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However,

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It's our submission that if that hypothesis was the sort of hypothesis that was so predetermined and so fixated in the journalist's mind that they turned a blind eye to any contrary evidence and engaged in deliberate avoidance of the truth.

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OK, so what is it that suggests that this was not a legitimate hypothesis, but a pre-confirmed view, that they had their view before they began their investigation?

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What allegation?

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We point to that.

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Your Honor, we point to multiple things that support that.

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And again, we don't have to... Just tell us two of them.

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The first, Your Honor, is the letters that came a week before publication

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that went to my two clients, but many other persons involved in these events, as well as to the consultants who had analyzed this entire deal, in which the journalist says, unequivocally, we think you've taken bribes.

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Now, Your Honor, that could cut in two directions.

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That could have an inculpatory inference that this is a continuation of this fixation and that it had been made up from the beginning and that they were blind to anything that would counter that.

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And it could also have an innocent explanation that they'd done their homework and now we're going through the motions of contacting the persons that were gonna be targeted before they published.

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Our point is- But if this is standard, isn't this also standard investigative journalistic practice that at the end of an investigation, the journalist or the journal in this case,

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contacts the target and says, here's what we think.

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This is what we think we found.

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Do you want to respond?

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Your Honor, yes.

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Yeah.

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And if we're a rule in this case that these letters fall on the wrong side in terms of your view here, then reporters will be taking a huge risk by writing a letter like this.

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Your Honor, we contest that and we contest that because although that principle may be accurate ultimately after a fully developed record, the prior decisions of this court that articulate the thoughts that you've just described, Your Honor,

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all came after the plaintiffs had the benefit of a thorough investigation in a record.

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So if you look at the cases relied upon by global witness, relied upon by the district court, Tabula Reyes was after a jury trial.

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Lawrence versus Donnelly was after a fully developed record on summary judgment.

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Jankovic III was after a fully developed record on summary judgment.

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Counsel, would you agree that the standard that you have to meet

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is set forth in Lorenz, there's obvious reasons to doubt the story.

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Isn't that correct?

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Yes, Your Honor.

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And I was the plaintiff's counsel in Lorenz.

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And as you know, in that case, that was elaborately developed in summary judgment.

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And the court ultimately ruled that despite all the notes, despite all the sources, despite all the references, we hadn't met the burden.

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And we think that what's key here, Judge Silverman, is the distinction between the standard

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on a Rule 12b6 motion and the distinction between the standard on a motion for summary judgment.

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And Buzz.

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I'm not even sure you have to make that argument, counsel.

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What are your obvious and your allegation and your complaint?

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What are the obvious reasons to doubt that you assert the defense labored under?

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What are the obvious reasons to doubt?

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Well, among other things, Your Honor, the elaborate explanation by those that Global Witness contacted as to why it was utterly implausible that these were bribes.

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The fact that the money went to hundreds of people, all the way down to the custodial workers.

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The fact that the decision to initiate the payments

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was because this was a landmark deal for Liberia of the sort it had never had before, that the direction came from President Sirleaf, this Nobel Prize winning president, first person who was a woman head of state in Africa.

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There were many, many indications that this was a bet.

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Excuse me, counsel.

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What do you make of the statement that you referred to in the complaint?

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The global witness has no evidence that Exxon directed NoCal to pay librarian officials, nor that Exxon knew such payments were, didn't Exxon even knew such payments were occurring.

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We think that statement helps us tremendously, Your Honor, because we think it's speaking with a forked tongue.

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On the one hand, what is overwhelmingly communicated here is that they've got the goods on Exxon and they've got the goods on these officials and they did it.

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And then they admit in the very same document, they don't know whether they did it.

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And so they write a story creating the impression, this is bribery, this is bribery, this is bribery.

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That's how we want you to see this story.

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But then they explain, well, we're not sure.

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And if you convey the impression... No, no, no, it's worse.

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Isn't it stronger than that, Council?

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We have no evidence.

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We have no evidence connecting Exxon to the money paid, incidentally, to 11 people, six members of the committee and five consultants.

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Absolutely, Your Honor.

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It is stronger than that.

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And I think that that is in itself enough to cross the threshold required by Twomley and Iqbal.

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It is at least plausible, given what they have said themselves, that this was communicated with reckless disregard for truth or falsity.

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Can I ask you the following question?

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If all we have in a complaint is an allegation that the publisher said something like, we believe you may have committed bribery, and then there's a vehement denial by the people to whom the correspondence is directed that says, no, that's absolutely false.

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That's not what happened.

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Is that enough to get past the pleadings?

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No, Chief Judge, I think that would be the kind of formulaic recitation, the kind of threadbare allegation.

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And it's our submission, obviously, that that's not our case, that we have all these other indicia.

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We have the fact that, curiously, although they accuse the consultants of bribery, they drop out of the picture.

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Although the advisor to the president, someone who would be sort of akin to a White House counsel in the United States,

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who had approved the deal, he doesn't show up in the final allegations.

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There are all these different pieces.

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And as we have strongly urged in any defamation case,

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These are all that most plaintiffs will ever have at this early stage, before they can look at emails, before they can look at text messages, before they can depose sources, before they can examine the journalists, before they can see the earlier drafts, before they can see what the editor said to the journalist, this might be a good story to go forward.

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So even as Your Honor has said, there may be some element to this that tracks routine journalistic practices.

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There's also a pattern here that tracks the way defamation cases operate in the real world.

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And we think that there's no fair characterizing our opinion as threadbare or relying only on buzzwords.

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It's factually laden.

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It goes deeply into everything that's in this global witness report and the inferences to which we are entitled.

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Just as in baseball, when Ty goes to the runner, in a case like this, if there are multiple inferences possible, we must get all of them at the front end.

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Your Honors, I've spent all my time on this issue, and I know that there are many others, and I know you'll hear from my friend, Mr. Bowman, on many others.

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I do want to say at the front end, and I'm sure I'll have a little bit of chance to talk about this on rebuttal,

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on the slap issue here.

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We think the case is extremely simple.

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There is simply still today a dissonance between the standard under 12b6 and the standard under the District of Columbia anti-SLAPP law.

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Under the anti-SLAPP law, the plaintiff must adduce evidence to defeat the SLAPP claim.

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Nothing like that is required under rule 12b6.

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In fact, it's not permitted.

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And under the anti-slap law, the burden shifts to the plaintiff once the prima facie case is shown, the exact opposite of the burden in defeating the rule 12b6 motion.

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So this court's prior panel decision in Abbots was not superseded by Mann.

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It remains the law of the circuit, and this court ought not revisit it.

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Can I just ask you one question on this anti-slap issue?

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Yes.

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And we will give you some time for rebuttal.

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the position in argument today or in your briefing that we don't need to reach that issue.

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Your point is just on the merits that if assuming we do reach the issue that you ought to prevail and the anti slap statute is not properly before us because of ABAS.

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Actually, Your Honor, I think we take both positions.

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We say very forthrightly, we don't think it's appropriate for the panel to entertain the issue because ABAS is the binding precedent of this circuit.

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Now, the other side says- That is entertaining the issue.

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It's just that ABAS resolves it.

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The Abbess resolves.

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I think the two effectively come together because there is this narrow band of exception that says if there's an intervening decision that absolutely abrogates a prior decision, a subsequent panel may be permitted.

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But if there isn't, if man does not constitute that, then Abbess remains good law.

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So the merits and the power of the panel, I think, Your Honor, in effect come together.

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I guess what I'm saying is what's at stake for the other side

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on that issue is the possibility of obtaining attorney's fees.

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So one could make the argument that if that's what's at stake, then there's no need to reach the issue at all.

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You're not taking that position.

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You're saying reach the issue, but then rule in our favor because Abbess Abbas, however you say it, is still government.

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You haven't made that argument.

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And just to be careful, Your Honor, we do say, we don't place great emphasis on it, but we do say that even if we're wrong on the merits and you were to overrule Abbess and say that the slab law applies, the court ought to use its inherent authority to announce that prospectively because clearly it would be a terrible trap for the unwary for us to suddenly be saddled with attorney's fees when we forthrightly admit that we chose the federal district court forum because we had been led to believe

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by many district court opinions in this court's opinion that the anti-SLAPP law did not apply.

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Counsel, weren't you asked to address the question of standing on the part of the defendant's cross-appeal?

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Your Honor, and we don't contest that they have standing.

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A little puzzle why nobody can test because the Supreme Court has specifically said in Steele Code

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that attorney's fees are not injury in fact.

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Your Honor, we'd be delighted for you to follow that line, of course.

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I think the reason that I'm hesitant to contest it is they clearly get a tangible procedural advantage in the case if they get the benefit of the need to be selected.

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And I think a party probably has standing to say I'm entitled to that.

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But that's the very reason we should win.

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Because if they get that tangible procedural benefit, by definition, it's inconsistent with the federal rule.

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Actually, I really don't care what the party said, because that's a matter on which we have to rule independently.

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If there is no injury in fact, there's no grounds for cross appeal here on the part of the defendant.

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But let's go on, because it may well be unnecessary to even reach the slap statute.

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I appreciate that, Your Honor.

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Okay, thank you.

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Unless my colleagues have further questions for you on your opening argument, we'll let Mr. Bowman go and then you'll get rebuttal time.

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And just to outline the procedure, since there is a cross appeal, you'll both get a bit of rebuttal time.

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Thank you.

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Thank you, Your Honor.

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Mr. Bowman.

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Chad Bowman on behalf of Global Witness and Global Witness Publishing, Inc.

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May it please the court

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This is a defamation case brought by two former senior Liberian officials against a nonprofit organization that published a white paper, a nonprofit organization that has a long history of working with the Liberian people to increase the accountability of their government.

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Council, may I suggest, because there's a limited time, that you go immediately to the actual malice question, assuming I do end up

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that a libel has made out.

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I wouldn't be surprised if the three judges are most interested in the question of actual malice.

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Yes, Your Honor, of course.

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We don't dispute

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in a 12B6 motion that the tie goes to the runner.

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Our position is this case does not pose anything close to a tie.

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In this case, the district court looked at the pleaded allegations of actual malice in the complaint and asked the question, do those pleaded allegations, assuming the factual allegations are true, plausibly establish actual malice under the standards of this court, as set forth by the Jenkovich Court, the Lorenz Court,

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and all of the decisions in this court recognizing the high burden that a plaintiff has to meet.

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And the court said no.

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Let me ask you a question about Lorenz on which I sat.

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You agree.

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The question is, are there obvious reasons to doubt the story?

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That's the standard in Lorenz, right?

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Yeah, it's one of the hard-hanged standards, yes, Your Honor.

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If there are obvious reasons to doubt a story such that there is a high degree of awareness of probable falsity, that would be actual malice.

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All right, good.

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So in asking whether there's an obvious reason to doubt, you have a mixture of objective standards and subjective.

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The obvious reasons to doubt is an objective standard leading to a conclusion about subjective motivation.

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I think it's a subjective standard, Your Honor.

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No, of course.

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But you had subjective reasons to doubt.

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Obvious reasons is an objective standard.

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Yes, Your Honor.

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OK.

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What I think is important here to remember and to emphasize, and I don't mean to move off actual malice, but this report, 35-page report with 125 footnotes, the plaintiffs don't cite any false facts in the report.

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Everything published in the report.

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Now you're putting on the question of,

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Yes.

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And I suggest to you that you should focus on actual malice.

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Yes, your honor.

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So with actual malice, we're talking about an awareness of likely falsity of an inference.

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You have here the alligator.

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Excuse me.

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The standard is obvious reasons to doubt.

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Yes, your honor.

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That's the standard in Lorentz.

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Yes, your honor.

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Were there obvious reasons to doubt or not?

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No, Your Honor, there were not.

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And in fact, plaintiffs concedes that, or the plaintiffs can see that in their briefing, that the global witness published the report raising the question, not knowing whether it was true or false.

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They investigated whether or not these admitted payments, these payments, these bonus payments that were received by these officials that were larger than their annual salary following the completion of the transaction were legal.

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They asked.

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So you're referring to page 48 of their brief.

[00:23:12] Speaker 03:
I'm referring to page 15 of their brief, your honor.

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Well, it's also on 48.

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In other words, former librarian officials concede that global witness did not know whether the payments were illegal.

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That concession alone negates the possibility of sufficient actual malice pleaded.

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That's your point?

[00:23:34] Speaker 03:
My point is we read that differently.

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That concession by the appellants here concedes there wasn't a subjective awareness of falsity.

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The report itself said, here are all the facts.

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Actually, I don't know whether or not this rose to the level of bribery.

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There should be an investigation.

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We are raising that as a question.

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Excuse me, counsel.

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If you look at page 36 of the brief, it states, global witness subjectively knew that it had not been able to determine whether the payments to Ta and McLean were corrupt bribery payments.

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If that had been all they said, you would be right.

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But if they go on to say,

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yet without resolving that subjective doubt and not withstanding the material in its possession that generated a high degree of subjective awareness that the story was false.

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So in other words, they go beyond your contention.

[00:24:34] Speaker 06:
They say you didn't know, but you ignored evidence that the story was false.

[00:24:39] Speaker 03:
Your honor, we dispute that there was evidence, global witness contact in each of the sources.

[00:24:45] Speaker 06:
I'm only making the point that they didn't make the concession that you said they made.

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Yes, your honor.

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Our point, your honor, is that the allegations will take into three buckets, the allegations of a preconceived narrative.

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This court has been clear in the Jankovic decision, a preconceived narrative is the nature, as Judge Heidel mentioned, of investigative journalism.

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You go out and you test theories.

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A preconceived notion, an allegation of a preconceived notion of a story, is only evidence of actual malice if it's coupled with facts that plausibly suggest that someone wanted to fulfill that preconceived narrative through falsity.

[00:25:26] Speaker 03:
There's no allegation, factual allegation here of that.

[00:25:29] Speaker 06:
Wait a minute.

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I agree with you that that preconceived notion is not the strongest part of their case.

[00:25:37] Speaker 06:
But what seems to me a lot stronger is the fact that you specifically say Global Witness has no evidence that Exxon directed NoCal to pay librarian officials, nor that Exxon even knew such payments were occurring.

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Now, I realize you put that in in order to rebut the libel action, the first step.

[00:26:10] Speaker 06:
But why isn't that injurious to your position on actual malice?

[00:26:16] Speaker 03:
Our position as actual malice requires an awareness of subjective falsity, Your Honor.

[00:26:22] Speaker 06:
Well, OK.

[00:26:24] Speaker 06:
Let's assume, arguing, though, that the first step is made out.

[00:26:28] Speaker 06:
There's an implication of bribery.

[00:26:31] Speaker 06:
Now, in which case, who are the bribees?

[00:26:36] Speaker 03:
The bribees would be the individuals who received the largest payments and voted for the deal.

[00:26:44] Speaker 06:
And why would that include the consultants who got $15,000 apiece?

[00:26:49] Speaker 03:
You're speaking about the omission.

[00:26:51] Speaker 03:
The report

[00:26:53] Speaker 03:
clear, it says it named the individuals who voted for the program.

[00:26:57] Speaker 03:
There were many more who received bonuses, you know, including the consultant.

[00:27:02] Speaker 06:
All right, I see your point.

[00:27:05] Speaker 06:
So there's six people who are the bribees, right?

[00:27:09] Speaker 03:
In your hypothetical, Your Honor, yes.

[00:27:11] Speaker 06:
Well, no, it's your case, isn't it?

[00:27:13] Speaker 06:
The six people are the bribees, right?

[00:27:16] Speaker 03:
Our position is that Global Witness asked a question and called for an investigation.

[00:27:22] Speaker 06:
You have to assume

[00:27:23] Speaker 06:
For purposes of my question, you have to assume the first point has been raised, made out the way the district judge said.

[00:27:31] Speaker 03:
I accept that, Your Honor.

[00:27:32] Speaker 03:
Assuming that to be the case, yes.

[00:27:34] Speaker 06:
OK.

[00:27:34] Speaker 06:
Now, the bribees are six people, at least six people, right?

[00:27:40] Speaker 03:
Yes, Your Honor.

[00:27:41] Speaker 06:
This is all quite public, right?

[00:27:46] Speaker 03:
I'm not sure I follow that.

[00:27:48] Speaker 06:
There's no secrecy about this.

[00:27:50] Speaker 03:
There's no secrecy.

[00:27:51] Speaker 06:
That's right.

[00:27:52] Speaker 06:
These six people have got $35,000.

[00:27:54] Speaker 06:
It's also true that you have zero evidence that Exxon had any knowledge of these payments.

[00:28:08] Speaker 03:
I say no secrecy, Your Honor.

[00:28:09] Speaker 03:
There's no secrecy because a Liberian good government law, which global witness had helped champion, required the publication of that information.

[00:28:16] Speaker 03:
And the point of this report

[00:28:18] Speaker 03:
was to encourage the publication of similar information in the United States so that we would have access to.

[00:28:23] Speaker 06:
You're avoiding my question.

[00:28:26] Speaker 06:
The bribees are at least the six individuals who got $35,000.

[00:28:30] Speaker 06:
Correct.

[00:28:32] Speaker 06:
It's undisputed, according to you, that there was zero evidence that Exxon had any knowledge of these payments.

[00:28:41] Speaker 03:
Global Readiness included in their report that they did not have evidence of that payment, which is why they called for an investigation.

[00:28:47] Speaker 06:
All right, wait a minute.

[00:28:47] Speaker 06:
Now, if you're alleging bribery, which of course is the first step, we're assuming arguendo, then the bribees are this six people.

[00:28:59] Speaker 06:
And yet you have zero evidence of any privity between Exxon and these individuals concerning a bribe.

[00:29:07] Speaker 06:
Isn't that correct?

[00:29:10] Speaker 03:
It was not inherently improbable given the history of this oil concession.

[00:29:14] Speaker 06:
Why isn't it inherently probable?

[00:29:18] Speaker 06:
This is all public.

[00:29:21] Speaker 06:
Bribes take place in the dark of the night.

[00:29:24] Speaker 03:
I think not always, Your Honor.

[00:29:26] Speaker 03:
In 2007, the Liberian government investigated and adjudicated that there was in fact bribery over this very oil concession when it was privatized.

[00:29:37] Speaker 06:
We don't know any of the facts about how that bribery was determined.

[00:29:41] Speaker 06:
But isn't it true bribery is a crime, right?

[00:29:44] Speaker 03:
It is a crime, Your Honor.

[00:29:45] Speaker 06:
You don't normally advertise it publicly and saying everybody got $35,000.

[00:29:52] Speaker 06:
It's undisputed that this happened after the deal was over.

[00:29:57] Speaker 06:
It's undisputed you have no evidence connecting Exxon to these payments, none at all.

[00:30:05] Speaker 06:
So why isn't that, per se, actual malice?

[00:30:10] Speaker 06:
It's inherently, why isn't there objective reasons to doubt the truth of the implication?

[00:30:19] Speaker 06:
It's public.

[00:30:22] Speaker 06:
According to your view, Exxon is spreading bribes around like Johnny Appleseed.

[00:30:27] Speaker 06:
It's absolutely public.

[00:30:30] Speaker 06:
And you have zero evidence connecting Exxon to the payments.

[00:30:38] Speaker 06:
But you imply,

[00:30:40] Speaker 06:
that Exxon bribed them.

[00:30:43] Speaker 03:
Your honor, Exxon doesn't need to be the bribe pair in your hypothetical.

[00:30:48] Speaker 03:
In the 2007 situation, the bribes were not paid by the foreign oil company.

[00:30:54] Speaker 03:
The bribes were paid internally to get the legislature to approve.

[00:30:58] Speaker 06:
Didn't your article imply that Exxon did the bribing?

[00:31:03] Speaker 03:
The article asked the question.

[00:31:05] Speaker 03:
whether it was appropriate for Exxon to provide a pool of money to be distributed to the people who voted for the deal.

[00:31:12] Speaker 03:
Bribery, Your Honor, is a conclusion.

[00:31:14] Speaker 06:
Where do you have any evidence that Exxon provided a pool of money to be distributed as bonuses?

[00:31:25] Speaker 03:
Raise the question whether Exxon did.

[00:31:27] Speaker 03:
The bonus is paid.

[00:31:30] Speaker 06:
You can't raise a question without any evidence at all.

[00:31:35] Speaker 06:
an allegation of bribery without any evidence at all?

[00:31:41] Speaker 03:
Your honor, the evidence is that the pool of money was paid as part of the 2013 transaction.

[00:31:47] Speaker 03:
Following that transaction, a pool of bonuses was paid.

[00:31:50] Speaker 03:
The report raised a question based on these undisclosed facts, whether or not that was proper, including whether or not that violated bribery laws.

[00:32:00] Speaker 06:
Now you're going back to the original question of whether there's an implication of bribery.

[00:32:04] Speaker 06:
And I've asked you to assume, arguing that there is an implication of bribery, because that's the first step, right?

[00:32:11] Speaker 06:
You see the point?

[00:32:14] Speaker 06:
Once an implication of bribery, then you have the briber is axon.

[00:32:20] Speaker 06:
And who are the bribees?

[00:32:22] Speaker 06:
There's six people who publicly are disclosed as getting a bonus.

[00:32:27] Speaker 06:
There is zero evidence that although there's an implication in your article,

[00:32:33] Speaker 06:
that Exxon did the bribing, you have zero evidence connecting Exxon to this money.

[00:32:45] Speaker 03:
I'm not sure that's true, Your Honor.

[00:32:46] Speaker 03:
The money was paid as part of the transaction.

[00:32:49] Speaker 03:
And it was expressly tied after the transaction as for a job well done to the people who worked on the deal.

[00:32:56] Speaker 03:
And I take your point.

[00:32:59] Speaker 06:
Under that theory, as an ex-banker, I can tell you.

[00:33:02] Speaker 06:
Under that theory, every investment banker who takes a share of the transactions in a sale of a corporation to another would be guilty of bribery.

[00:33:17] Speaker 03:
It's slightly different, your honor, when they're public servants who are not supposed to necessarily receive bonuses for... So you think the fact that they got bonuses is per se evidence of bribery?

[00:33:32] Speaker 03:
I didn't say that, Your Honor.

[00:33:33] Speaker 03:
It's per se evidence that global witness thought it should be investigated, given the history of this oil concession.

[00:33:40] Speaker 06:
Now, you're back to the basic point.

[00:33:43] Speaker 06:
Let's assume you implied bribery.

[00:33:47] Speaker 06:
If you assume why you end up with implied bribery, I'm trying to examine whether you have any evidence that rebuts actual malice, or does

[00:33:59] Speaker 06:
Isn't this inherently improbable to use another standard that this bribe would be so public without any indication, no privity between Exxon and these bonus payments?

[00:34:17] Speaker 06:
Zero.

[00:34:20] Speaker 03:
May I answer the question, Your Honor?

[00:34:22] Speaker 03:
Yes, yes.

[00:34:28] Speaker 03:
I think the evidentiary burden is on appellant to show awareness of falsity here, I take your point that you're asking what affirmative evidence does global witness have if you assume it made an implication that it did not squarely make in its report of bribery.

[00:34:46] Speaker 03:
I would say the evidence is that global witness sought comment, global witness included comment, global witness set forth all the bases that it understood why it was asking for an investigation, which I believe taken in the full context of the report illustrates that potentially corrupt or improper or bribes are not inherently improbable in Liberia when you're dealing with the disposition of state assets like that oil license.

[00:35:14] Speaker 06:
We should just assume that Liberia is corrupt.

[00:35:17] Speaker 03:
I wouldn't say that, Your Honor.

[00:35:19] Speaker 03:
However, this particular oil concession did have a history of corruption, one that was acknowledged by Exxon when it proposed a multi-step transaction because it was concerned with U.S.

[00:35:30] Speaker 03:
money laundering laws, given the original privatization of the 2007 concession.

[00:35:36] Speaker 06:
That goes back to the first question, whether there's an implication of bribery.

[00:35:43] Speaker 03:
I take your point, Your Honor.

[00:35:44] Speaker 01:
So if you assume the, you keep taking the point, but if you, let's say you take the point and you can't have the response that you've tried to make several times, which is that all you were doing was raising a question, because that does fight the premise of the line of questioning, right?

[00:36:00] Speaker 01:
So if you can't just say, all we were doing is raising a question and you have to assume that there was an implication of bribery, then do you accept the proposition that if there was an implication of bribery, there were obvious reasons to doubt whether there was bribery?

[00:36:14] Speaker 03:
We do not, your honor.

[00:36:16] Speaker 03:
Our position is, if we came out, if the global witness report came out and said, we think these are bribes, the reasons we think these are bribes are completely set out in the report.

[00:36:27] Speaker 03:
Everything from the history of the transaction to the large payments that were unusual.

[00:36:33] Speaker 03:
There's no dispute that payments like this had never been made to these individuals.

[00:36:38] Speaker 03:
There's no dispute that the legality of accepting these payments

[00:36:41] Speaker 03:
was decided by the people who were going to receive them.

[00:36:44] Speaker 03:
It's not disputed.

[00:36:46] Speaker 03:
It's alleged in the complaint that the person who decided to make the bonus, the president, her son, received one of those payments.

[00:36:55] Speaker 03:
All of those facts are set forth in the report, including the responses of the individuals that Global Witness was going to name as people who both received bonuses far in excess of their annual salary and voted for the transaction that provided the funds for those.

[00:37:10] Speaker 03:
having laid out all of that evidence, if Global Witness had come out and said, we think these are bribes, that's a conclusion.

[00:37:18] Speaker 03:
That's a conclusion amply supported by the disclosed facts that lead to that conclusion.

[00:37:23] Speaker 06:
And there are no obvious red flags.

[00:37:26] Speaker 06:
You're still back on the first issue.

[00:37:29] Speaker 06:
And that, I think, shows the weakness of your actual malice argument, because you keep coming back to the first question, denying there's any implication of bribery.

[00:37:41] Speaker 03:
The plaintiffs, may I respond to the specific points the plaintiff raised about act alleging extra malice your honor.

[00:37:50] Speaker 01:
It's on actual malice, yeah.

[00:37:52] Speaker 03:
Yes, it's on actual malice.

[00:37:54] Speaker 03:
The alleged omissions.

[00:37:57] Speaker 03:
The district court, I think, properly regarded that as somewhat of a non sequitur because the report expressly said these are the individuals who both voted for the transaction and received large bonuses.

[00:38:13] Speaker 03:
The idea that there were others who also received bonuses that were smaller

[00:38:17] Speaker 03:
and didn't vote for the report, that is not an obvious red flag that not disclosing that somehow illustrates the global witness knew what it published was false.

[00:38:27] Speaker 03:
That's the, you know, I think I already discussed a little bit the theory on a predetermined agenda.

[00:38:33] Speaker 03:
Essentially, the fact that Global Witness sought comment from the individuals it was going to report about is being spun as somehow they knew it was false.

[00:38:43] Speaker 03:
They asked, they said, this is what we believe based on the information we have.

[00:38:47] Speaker 03:
What is your response in light of that response?

[00:38:49] Speaker 06:
A little stronger than that.

[00:38:51] Speaker 06:
It was an accusation, wasn't it?

[00:38:53] Speaker 03:
I think the actual language of the letters, Your Honor, is we believe this is likely bribes under Liberian law.

[00:38:59] Speaker 03:
How do you respond?

[00:39:00] Speaker 06:
That's what I call an accusation.

[00:39:02] Speaker 03:
And Global Witness took those responses, decided ultimately not to make the allocation in its report, and also included the responses and the explanations by those officials in the report.

[00:39:15] Speaker 03:
I don't think that's probative of a high degree of awareness of probable falsity.

[00:39:18] Speaker 03:
That's probative of an intent to portray fairly a complex factual situation.

[00:39:25] Speaker 03:
situation that global witness struggled with.

[00:39:29] Speaker 03:
So you have the emissions, the alleged emissions, the alleged preconceived narrative.

[00:39:36] Speaker 03:
I think that's essentially what the planet has, other than this idea that it's inherently improbable in the disposition of a Liberian oil asset, it's impossible that there could be bribes paid.

[00:39:53] Speaker 06:
And what I would say- Wait, wait, wait, wait.

[00:39:54] Speaker 06:
Is the standard impossible?

[00:39:56] Speaker 03:
Improbable.

[00:39:57] Speaker 03:
Inherently improbable.

[00:39:59] Speaker 03:
Your honor, it happened before with regard to that precise concession.

[00:40:04] Speaker 03:
just a few years earlier.

[00:40:06] Speaker 03:
So our position, it's not inherently improbable that those could have been bribes.

[00:40:11] Speaker 06:
Well, the question is, let's use Lorenz.

[00:40:14] Speaker 06:
Is there objective reasons to doubt the story?

[00:40:21] Speaker 06:
And you're back to the problem that you have zero evidence connecting Exxon to these payments.

[00:40:28] Speaker 06:
Zero, they take place after the deal is finished.

[00:40:33] Speaker 06:
You have zero evidence to indicate that Exxon even knew about the bonus payments.

[00:40:41] Speaker 03:
That's correct, Your Honor, and the report says as much.

[00:40:43] Speaker 03:
I'm not going to dispute that.

[00:40:44] Speaker 03:
That's true.

[00:40:45] Speaker 06:
Yeah, but that seems to me that undercuts enormously your defense on actual malice.

[00:40:55] Speaker 01:
OK.

[00:40:56] Speaker 01:
Let me make sure that my colleagues don't have further questions.

[00:40:59] Speaker 04:
I just have one question just on the anti-SLAPP issue.

[00:41:03] Speaker 04:
I'm sorry to take a little further, but I'd just like the counsel to give us, on the anti-SLAPP issue, could you, the DC Court of Appeals opinion that came out after the brief profile threatened

[00:41:29] Speaker 04:
That case?

[00:41:30] Speaker 04:
Yes, Your Honor.

[00:41:31] Speaker 04:
Why doesn't that totally resolve this question of the applicability of the anti-SLAP statute?

[00:41:36] Speaker 04:
Because it makes clear that discovery is virtually impossible.

[00:41:44] Speaker 03:
As I read Mann, Your Honor.

[00:41:47] Speaker 04:
No, I asked you about Frederick.

[00:41:49] Speaker 04:
I asked you about the new decision.

[00:41:51] Speaker 03:
Yes, Your Honor.

[00:41:51] Speaker 03:
I'm just explaining how that led into the Friedman versus Orbis intelligence case.

[00:41:58] Speaker 03:
The standard for both man and Orbis is to avoid the conflict with the federal rules or constitutional issues.

[00:42:07] Speaker 03:
The standard, the likely to succeed on the merits is that the plaintiff can't succeed as a matter of law.

[00:42:15] Speaker 03:
It's equivalent to 12 or 56.

[00:42:17] Speaker 03:
In most anti-SLAP cases, the defendants will proffer evidence, and it will be the equivalent of a Rule 56 motion, which under Rule 56, you know, in early Rule 56 motion, the respondent can explain that it needs discovery.

[00:42:34] Speaker 03:
our case is a little bit different.

[00:42:37] Speaker 03:
We moved to dismiss under Rule 12b6 for failure to state a claim, and no discovery was necessary, but I think if a claim is insufficient as a matter of law under Rule 12b6, it can't be likely to succeed on the merits because the claimant cannot prevail as a matter of law under man and under an order of Orbus.

[00:42:57] Speaker 03:
I agree with you, and Friedman

[00:42:58] Speaker 03:
The case was treated essentially like a Rule 56 based on evidence.

[00:43:03] Speaker 03:
But I don't think that's the way that an anti-SLAP motion needs to be treated.

[00:43:09] Speaker 01:
Can I just ask you about the way this issue gets teed up?

[00:43:11] Speaker 01:
Because there's an appeal, there's a cross-appeal, there's the underlying question of whether there's actual malice, and there's the anti-SLAP issue.

[00:43:17] Speaker 01:
So there's a number of ways that we can do the decision tree.

[00:43:20] Speaker 01:
But let's just suppose, I know you're going to resist this, but let's just suppose that on the appeal,

[00:43:29] Speaker 01:
that the decision is made to send it back on actual malice because the Court of Appeals concludes that there's enough to get past the pleadings, at least on actual malice.

[00:43:42] Speaker 01:
Not that anybody's going to get home, but that there's enough to get past the pleadings.

[00:43:46] Speaker 01:
Then is there still a need to address the anti-slap issue?

[00:43:51] Speaker 01:
And I guess your argument would be, I'm thinking your argument would be, but correct me if I'm wrong,

[00:43:57] Speaker 01:
there would be because if the anti-SLAP statute does apply, then that would impose a greater evidentiary burden on the plaintiffs.

[00:44:06] Speaker 01:
And if it did impose a greater evidentiary burden on the plaintiffs, then they might not have met that burden, even if they met normal 12b6.

[00:44:13] Speaker 01:
And if they haven't met the anti-SLAP burden and the anti-SLAP provision does apply, then you still win at the pleading stage.

[00:44:19] Speaker 01:
Is that what you would say?

[00:44:20] Speaker 01:
Or am I not understanding your argument?

[00:44:22] Speaker 03:
Your honor, I don't believe so.

[00:44:24] Speaker 03:
I believe our argument in the district court was that The anti slap motion.

[00:44:31] Speaker 03:
we prevailed on for the same reasons as the 12b6.

[00:44:34] Speaker 03:
So we were aligning the standards under the federal rules with the anti-SLAP.

[00:44:41] Speaker 03:
I believe if the court were to say that the motion to dismiss was denied, given that the anti-SLAP on its merits incorporated the arguments of the motion to dismiss, I think that the anti-SLAP was denied as well.

[00:44:54] Speaker 01:
Because you're more beholden to the position that anti-SLAP didn't do anything.

[00:45:00] Speaker 01:
than you are to the position that you want to get something extra out of the anti-slap?

[00:45:05] Speaker 03:
I think that Abbas forecloses getting something extra out of the anti-slap case, Your Honor.

[00:45:11] Speaker 03:
I think that for the anti-slap statute to apply in federal court, the standards need to be in alignment with Rule 12 or Rule 56.

[00:45:20] Speaker 03:
We didn't bring a Rule 56 anti-slap motion, we brought a Rule 12 anti-slap motion.

[00:45:26] Speaker 01:
Okay.

[00:45:28] Speaker 01:
All right, let me make sure my colleagues don't have further questions at this point.

[00:45:33] Speaker 01:
No.

[00:45:34] Speaker 01:
No.

[00:45:34] Speaker 01:
Thank you.

[00:45:35] Speaker 01:
Mr. Small, why don't we give you three minutes for your rebuttal?

[00:45:40] Speaker 02:
Thank you, Your Honors.

[00:45:41] Speaker 02:
And first, just very quickly on the anti-SLAP, I think that the dialogue that we've just heard resolves the case in our favor, because they can't have it both ways.

[00:45:50] Speaker 02:
And to the extent that it applies automatically, it imposes more procedural burdens on us than we would otherwise have.

[00:45:57] Speaker 02:
I want to just turn to the merits and again I don't think I need to be very long because the dialogue between the court and Mr Bowman and the dialogue between the court and me have already I think eliminated the pivotal issue.

[00:46:10] Speaker 02:
So I'd just like to connect the dots in a few ways.

[00:46:13] Speaker 02:
First, there is an interconnectedness between the underlying falsity issue.

[00:46:20] Speaker 02:
Did this alleged bribery?

[00:46:22] Speaker 02:
Would a reader come away from this thinking they are saying these folks took bribes?

[00:46:27] Speaker 02:
There's an inherent interconnectedness between that issue and the actual malice issue.

[00:46:33] Speaker 02:
And you saw it revealed constantly

[00:46:36] Speaker 02:
When pressed, Mr. Bowman would constantly fall back on all we were doing was asking questions, all we were doing was calling for an investigation.

[00:46:44] Speaker 02:
And as I have conceded to Chief Judge Srinivasan, if that is all they were doing, we don't have a case.

[00:46:51] Speaker 02:
But the district court found that was not all they were doing.

[00:46:54] Speaker 02:
And when you read the report, I'm sure the court will say it is at least very plausible that's not all they were doing.

[00:47:00] Speaker 02:
that they were affirmatively making the case this is a bribe, this is a bribe, this is a bribe.

[00:47:06] Speaker 02:
And yet, as you've already seen revealed, juxtaposed with that is obvious reasons to doubt.

[00:47:13] Speaker 02:
And the last thing I want to say, that remember, we don't have to prove the obvious reasons to doubt.

[00:47:20] Speaker 02:
At this stage, we just have to have plausible allegations of obvious reasons to doubt.

[00:47:26] Speaker 02:
And as the quoted sections from our brief reveal in the dialogue between Judge Silberman and Mr. Bowman, our hypothesis is they have essentially conceded they have obvious reasons to doubt.

[00:47:38] Speaker 02:
They say so essentially in the text.

[00:47:40] Speaker 02:
And given that, this case should move forward into discovery.

[00:47:45] Speaker 02:
Thank you, Your Honors.

[00:47:46] Speaker 01:
Can I ask just one question, just a factual one?

[00:47:49] Speaker 01:
So there's a letter

[00:47:51] Speaker 01:
that has the language that someone was quoting.

[00:47:54] Speaker 01:
I just want to double check.

[00:47:55] Speaker 01:
And it says there's no evidence that Exxon was aware of these payments.

[00:47:59] Speaker 01:
Is that in the complaint?

[00:48:01] Speaker 01:
Yes, Your Honor.

[00:48:04] Speaker 02:
And Your Honor, I don't remember where, but what I will say is that the entire report was incorporated in the complaint and we rely on the entire report.

[00:48:16] Speaker 02:
And so I think that the court can look to anything in the complaint or the report as illuminating obvious reasons to doubt.

[00:48:26] Speaker 01:
Yeah, that may be so.

[00:48:26] Speaker 01:
I was just wondering if that particular language was pointed out on the complaint.

[00:48:30] Speaker 02:
Your Honor, I don't.

[00:48:32] Speaker 02:
It's a long complaint.

[00:48:32] Speaker 02:
I don't remember.

[00:48:33] Speaker 02:
OK.

[00:48:34] Speaker 02:
Thanks.

[00:48:35] Speaker 01:
All right.

[00:48:36] Speaker 01:
Thank you, Mr. Small.

[00:48:37] Speaker 01:
Mr. Bowman, since there's a cross appeal, we'll give you rebuttal time two.

[00:48:41] Speaker 01:
And why don't you limit the argument on your rebuttal to the cross appeal?

[00:48:45] Speaker 01:
And we'll give you.

[00:48:46] Speaker 01:
Yes, Your Honor.

[00:48:46] Speaker 03:
Although may I correct one misstatement I made in response to a question from Judge Silverman?

[00:48:51] Speaker 03:
Yes.

[00:48:53] Speaker 03:
Judge Silverman asked about the public nature of the bonuses.

[00:48:58] Speaker 03:
I was mistaken.

[00:48:59] Speaker 03:
I'd forgotten the the bonuses were not public until global witness revealed them global witness was its report was the one that revealed those.

[00:49:07] Speaker 03:
So I just wanted to correct that that misstatement.

[00:49:10] Speaker 03:
On the cross appeal.

[00:49:12] Speaker 03:
I think the issue is fairly straightforward that Mann attempted to reconcile and interpret for the first time the standard for prevailing under the anti-SLAP statute, which was the precise issue that Abbas found conflicted with the federal rules.

[00:49:30] Speaker 03:
Mann clearly said, we find that it comports with the federal rules.

[00:49:35] Speaker 03:
Given that there's now alignment between the substantive standard

[00:49:42] Speaker 03:
to dismiss a case prior to trial, there is not the same conflict that existed.

[00:49:47] Speaker 01:
I don't understand how there's alignment, because under Mann itself and under the subsequent case, but even under Mann itself, there still needs to be some evidence.

[00:49:57] Speaker 01:
And usually under 12b6, there's just not.

[00:50:01] Speaker 03:
Right.

[00:50:02] Speaker 03:
And that, Your Honor, is the distinction between a rule 12 motion and a rule 56 motion.

[00:50:06] Speaker 03:
I mean, certainly,

[00:50:09] Speaker 03:
If you're going to bring a type of a slap motion to put forward evidence, then it's essentially now treated as a Rule 56 motion.

[00:50:16] Speaker 03:
And the defendant has to prove there's no dispute of material fact.

[00:50:22] Speaker 03:
It would be an odd outcome to have a statute aimed at protecting speakers like global witness, speakers that have been dragged into litigation and exposed to the expense and harassment of litigation on matters of public concern

[00:50:38] Speaker 03:
one too early.

[00:50:40] Speaker 03:
And so our position is that a Rule 12 motion, as a matter of law, you don't have to get to Rule 56.

[00:50:46] Speaker 03:
If a complaint can't survive Rule 12, it also doesn't survive Rule 56.

[00:50:52] Speaker 03:
And therefore, the claimant isn't likely to succeed on that motion.

[00:50:59] Speaker 01:
There's a different standard.

[00:51:01] Speaker 01:
As I understand the DC Court of Appeals decisions, you have to do more to get past a Rule 12 motion in DC Court than you would in federal court under the anti-SLAPP statute.

[00:51:13] Speaker 01:
And if that's true, then when it gets in federal court, the federal rules trump the anti-SLAPP statute.

[00:51:21] Speaker 03:
It's true, Your Honor, you have to do more than a motion to dismiss in state court if you rely on evidence.

[00:51:27] Speaker 03:
But those procedural rules of a motion to dismiss don't apply in federal court.

[00:51:31] Speaker 03:
You only have Rule 12 or 56.

[00:51:34] Speaker 03:
And our position is that you can't be likely to succeed on the merits, as the man case said, where a claimant could not prevail as a matter of law, if you can't state a claim under Rule 12 as a matter of law.

[00:51:48] Speaker 01:
Okay.

[00:51:49] Speaker 01:
All right.

[00:51:50] Speaker 01:
If my colleagues don't have any further questions at this point, Mr. Bowman, Mr. Smola, thank you for your arguments.

[00:51:56] Speaker 01:
The case is submitted.

[00:52:00] Speaker 02:
Thank you, Your Honor.