WEBVTT 2 00:00:04.636 --> 00:00:35.154 ^ ( ^ ) ANSWER OF COUNSEL ^ ( ^ ). GOOD 3 00:00:35.154 --> 00:00:38.629 MORNING TO ALL COUNSEL MR. KOLBER PLEASE PROCEED. PETER KOBER: 4 00:00:38.629 --> 00:00:46.325 THANK YOU CHIEF JUSTICE RABNER INNER. I HAVE KONL AROUND TO 5 00:00:46.325 --> 00:00:55.248 CHANGE MY POINT OF VIEW ON THE ISSUES PRESENTED BY THIS APPEAL. I NO LONGER 6 00:00:55.248 --> 00:01:05.367 BELIEVE THAT SWAN IS UNSOUND I BELIEVE SWAN SHOULD BE YOUR OPINION HILD. BUT I 7 00:01:05.367 --> 00:01:12.025 BELIEVE THAT SWAN SHOULD BE LIMITED TO THE FACTS OF THAT CASE AND THE FACTS 8 00:01:12.025 --> 00:01:25.993 OF SIMILAR CASES. SWAN INVOLVED THE USE OF THE PRINT MEDIA BY 9 00:01:25.993 --> 00:01:36.133 THE OFFENDING ENTITY. IN SWAN, THE OFFENDING ENTITY ISSUED A PRESS RELEASE, IT 10 00:01:36.133 --> 00:01:44.935 DISSEMINATED A PASS A LONG BOOK, IT POSTED ON A BULLETIN BOARD THE CERTAIN 11 00:01:44.935 --> 00:01:52.979 OFFENSIVE WORDS. SO IN SWAN THE NATURE OF THE OFFENSE I HAVE WORDS 12 00:01:52.979 --> 00:02:02.013 WAS CLEAR AND APPARENT AND IN THAT SWAN HAS MUCH IN COMMON WITH ALL THE MEDIA CASE 13 00:02:02.013 --> 00:02:10.817 S. THE MEDIA CASES INVOLVING PRINT MEDIA, TELEVISION, THINGS POSTED 14 00:02:10.817 --> 00:02:19.041 ELECTRONICALLY, IN ALL THOSE CASES THE OFFENSIVE WORDS ARE CLEAR, THEY ARE APPARENT, 15 00:02:19.041 --> 00:02:30.270 AND IN EACH ONE OF THOSE CASES A CASE OF FALSE LIGHT INVASION OF PRIVACY BUT 16 00:02:30.270 --> 00:02:37.580 ALSO QUALIFIED AS A CASE OF DEFAMATION. SO THOSE CASES ARE THE EASY CASES. BUT 17 00:02:37.580 --> 00:02:42.829 THERE IS A DIFFERENT TYPE OF CASE, AND THIS IS THE TYPE OF CASE THAT WE ARE 18 00:02:42.829 --> 00:02:49.249 CONCERNED WITH HERE A CASE THAT DOES NOT INVOLVE ANY FORM OF MEDIA, DOES NOT INVOLVE 19 00:02:49.249 --> 00:02:58.485 ANY PRINT MEDIA, TELEVISION, OR POSTING ANYTHING ELECTRONICALLY THESE ARE 20 00:02:58.485 --> 00:03:03.924 CASES THAT INVOLVE WORDS THAT ARE COMMUNICATED BY OTHER MEANS. AND OFTEN THESE 21 00:03:03.924 --> 00:03:08.994 COMMUNITY SUPERVISION FOR LIFE CASES ARISE IN THE EMPLOYMENT CONTEXT. TYPICALLY 22 00:03:08.994 --> 00:03:17.235 AN EMPLOYEE WILL BE MADE AWARE OF CHARGES, THE CHARGES COULD BE BY A COMPANY 23 00:03:17.235 --> 00:03:23.520 EMPLOYEE, THE CHARGES COULD BE BY A CUSTOMER, THE CHARGES COULD BE BY SOMEONE AT 24 00:03:23.520 --> 00:03:29.022 A WORK SITE TO WHICH THE EMPLOYEE WHEREAS ASSIGNED. BUT TYPICALLY WHAT 25 00:03:29.022 --> 00:03:36.304 HAPPENS IN THESE CASES IS THAT THE EMPLOYEE IS NOT AWARE, DOES NOT HAVE ACCESS 26 00:03:36.304 --> 00:03:45.006 TO THE EXACT WORDS USED BY THE ACCUSER. TYPICALLY THE EMPLOYEE HAS AN IDEA 27 00:03:45.006 --> 00:03:51.535 OF THE GIST THE OF WHAT THE CHARGES ARE ABOUT AND WHEN THE ALLEGED EVENT THAT 28 00:03:51.535 --> 00:03:57.259 CAUSED THE CHARGES TO BE OCCURRED BUT MAY NOT HAVE THE KNOWLEDGE EVEN OF THE 29 00:03:57.259 --> 00:04:06.996 IDENTITY OF THE INFORM ERROR OF THE WORDS USED WHEN THE EMPLOYEE FILED SUIT. 30 00:04:06.996 --> 00:04:11.374 THOSE ARE THE KINDS OF CASES THAT WE ARE CONCERNED WITH HERE. 31 00:04:11.374 --> 00:04:22.508 CERTAIN COURTS HAVE RECOGNIZED THAT THERE IS INDEED A CLASS OF CASES THAT DO QUALIFY 32 00:04:22.508 --> 00:04:29.063 AS FALSE LIGHT INVASION OF PRIVACY CASES BUT WOULD NOT QUALIFY AS DEFAMATION 33 00:04:29.063 --> 00:04:37.787 CASES. I WILL NOW GIVE SOME EXAMPLES OF SOME COURTS WHICH HAVE REALIZED THAT THERE 34 00:04:37.787 --> 00:04:46.066 IS THIS DISTINCTION THAT EXISTS. THE FIRST EXAMPLE I HAVE IS COVERING TON 35 00:04:46.066 --> 00:04:54.809 VERSUS THE HOUSE TON POST, THAT CASE APPEARS AT 743 SOUTHWEST SECOND REPORTERS 36 00:04:54.809 --> 00:05:06.714 345. THAT IS A COURT OF A PEELS CASE IN 1987. AND IN THAT CASE THE COURT 37 00:05:06.714 --> 00:05:15.205 SAID THE FALSE LIGHT NEED NOT NECESSARILY BE A DEFAMATORY ONE ALTHOUGH IT VERY 38 00:05:15.205 --> 00:05:21.052 OFTEN IS SO THAT A DEFAMATION ACTION WILL ALSO LIE. CITING 39 00:05:21.052 --> 00:05:31.036 PROSER ON COURTS FIFTH EDITION, 1984. AND THAT APPEARS ON PAGE 347. 40 00:05:31.036 --> 00:05:35.461 CHIEF JUSTICE RABNER: MR. KOLBER, COULD YOU CLARIFY FOR US WHAT YOUR SUGGESTING 41 00:05:35.461 --> 00:05:41.782 RIGHT NOW? YOU IDENTIFIED A CATEGORY OF CASES LIKE SWAN WHERE PRESUMABLY 42 00:05:41.782 --> 00:05:45.967 YOU'RE SUGGESTING THE 1 YEAR STATUTE OF LIMITATIONS FOR A FAULGS LIGHT CLAIM WOULD BE 43 00:05:45.967 --> 00:05:50.251 AECH, AM I CORRECT SO FAR. PETER KOBER: YES I AGREE EVEN 44 00:05:50.251 --> 00:05:54.407 TIERL WITH THE AM KUS BRIEF THAT IN THOSE CLASS OF CASES. CHIEF 45 00:05:54.407 --> 00:05:58.778 JUSTICE RABNER: LET ME FINISH. PETER KOBER: A 1 YEAR STATUTE OF 46 00:05:58.778 --> 00:06:01.532 LIMITATIONS WOULD BE APPROPRIATE. I HAVE BEEN PERSUADED. 47 00:06:01.532 --> 00:06:05.262 CHIEF JUSTICE RABNER: AT THE SAME TIME, YOU'RE SUGGESTING THERE BE SOME OTHER 48 00:06:05.262 --> 00:06:08.830 FALSE LIGHT CLAIMS WHERE THERE SHOULD BE A 2-YEAR STATUTE OF LIMITATIONS? 49 00:06:08.830 --> 00:06:11.985 PETER KOBER: EXACTLY. AND I'M NOW GOING TO GET INTO THE 50 00:06:11.985 --> 00:06:16.507 REASONS FOR THAT CONTENTION OF MINE. CHIEF JUSTICE RABNER: DON'T 51 00:06:16.507 --> 00:06:22.049 YOU THINK THAT WOULD BE A BIT CONFUSING, TO HAVE TWO DIFFERENT STALS FOR 52 00:06:22.049 --> 00:06:26.172 THE SAME CLAIM. PETER KOBER: NO. AT THE END OF MY PRESENTATION 53 00:06:26.172 --> 00:06:32.674 WHAT I WAS GOING TO SAY IS THAT WHAT I AM SUGGESTING IS THERE OUGHT TO BE A DUAL 54 00:06:32.674 --> 00:06:38.779 APPROACH HERE WITH THE NEED FOR A THRESHOLD DETERMINATION BY THE TRIAL 55 00:06:38.779 --> 00:06:45.719 COURT AS TO WHETHER OR NOT THE FALSE LIGHT INVASION OF PRIVACY CLAIM ALSO QUALIFICATIONS 56 00:06:45.719 --> 00:06:48.688 AS A DEFAMATION CASE. CHIEF JUSTICE RABNER: ARE THERE -- 57 00:06:48.688 --> 00:06:51.593 I UNDERSTAND YOU WERE GOING TO GIVE COMBAM PELS OF THE DIRN KIEFRGS CASES. 58 00:06:51.593 --> 00:06:58.015 DO THOSE CASES HOLD THAT FALSE LIGHT HAS ONE OF TWO DIFFERENT STATUTE OF LIMITATIONS? 59 00:06:58.015 --> 00:07:01.787 PETER KOBER: NO. NO CASE HOLDS. CHIEF JUSTICE 60 00:07:01.787 --> 00:07:04.669 RABNER: SO THIS WOULD BE A FIRST. PETER KOBER: THIS WOULD BE 61 00:07:04.669 --> 00:07:06.509 A FIRST IN THE NATION. CHIEF JUSTICE RABNER: UNION COUNTY 62 00:07:06.509 --> 00:07:10.471 I CAN THINK OF CERTAIN REASONS RESPECTFULLY WHY NO COURT HAS GONE 63 00:07:10.471 --> 00:07:17.742 DOWN THIS ROAD. IT WOULD LEAD TO A LACK OF CLARITY AND ARGUABLY DISPARATE TREATMENT 64 00:07:17.742 --> 00:07:23.436 FOR THE SAME TORT. CAN YOU ADDRESS THAT? PETER KOBER: YES. 65 00:07:23.436 --> 00:07:34.789 THE COURT IN RA BAS KUS DRAED THE FOUR DIFFERENT TYPES INVASION OF PRIVACY 66 00:07:34.789 --> 00:07:41.904 CLAIMS. WHAT I AM SUGGESTING IS THAT FALSE LIGHT INVASION OF PRIVACY IF YOU ACTUALLY 67 00:07:41.904 --> 00:07:48.689 EXAMINE IT CLOSELY IT ACTUALLY INVOLVES TWO TYPES. SO THE FALSE LIGHT 68 00:07:48.689 --> 00:07:55.169 INVASION OF PRIVACY CLANL SHOULD PROPERLY SHOULD FROLY BE SPLIT INTO TWO DIFFERENT 69 00:07:55.169 --> 00:08:00.552 TYPES WHICH SHOULD BE HANDLED DIFFERENTLY, TREATED DIFFERENTLY, AND THE THRESHOLD 70 00:08:00.552 --> 00:08:06.824 DETERMINATION OF WHICH TYPE IT IS SHOULD BE MADE BY THE TRIAL JUDGE. 71 00:08:06.824 --> 00:08:10.264 JUSTICE PATTERSON: BUT BY THE TIME, COUNSEL, THAT THE TRIAL JUDGE MAKES THAT 72 00:08:10.264 --> 00:08:15.868 DETERMINATION, THE STATUTE MAY HAVE RUN ON A PLAINTIFF WHO HAS NOT PROPERLY 73 00:08:15.868 --> 00:08:21.016 ANTICIPATED THIS NEW ANSWERED DETERMINATION TO BE NAD BY THE TRIAL COURT. SHOULDN'T 74 00:08:21.016 --> 00:08:28.597 WE BE FOCUSED ON GIVING POTENTIAL LITIGANTS AND ALL PARTIES AS MUCH 75 00:08:28.597 --> 00:08:33.199 CLARITY AS POSSIBLE AS TO WHAT THE #4RI789 ASIANS PERIOD IS FOR A GIVEN CLAIM? 76 00:08:33.199 --> 00:08:37.457 PETER KOBER: YES. WE SHOULD BE GIVING LITIGANTS AS MUCH 77 00:08:37.457 --> 00:08:44.271 CLARITY AS POSSIBLE BY MAKING IT CLEAR THAT WHEN SOME COMMUNITY SUPERVISION FOR LIFE 78 00:08:44.271 --> 00:08:53.717 MEDIA IS USED, IT'S CLEAR WHAT THE OFFENSIVE COMMUNICATION WAS. 79 00:08:53.717 --> 00:08:54.876 THEREFORE. JUSTICE PIERRE-LOUIS: WHEN YOU SAY SOME 80 00:08:54.876 --> 00:08:58.146 COMMUNITY SUPERVISION FOR LIFE MEDIA WHAT ARE YOU REFERRING TO, PARTICULARLY IN 81 00:08:58.146 --> 00:09:05.276 DWOUR WHERE MEDIA ENCOMPASSES A LOT OF DIFFERENT MRAFRMS. PETER 82 00:09:05.276 --> 00:09:08.559 KOBER: ALL KINDS OF FLAFRNLS EVERY KIND. JUSTICE PIERRE-LOUIS: 83 00:09:08.559 --> 00:09:10.991 POSE CONTINUATION SOMETHING ON SOCIAL MEDIA. PETER KOBER: 84 00:09:10.991 --> 00:09:14.124 EVERYTHING YES. JUSTICE PIERRE-LOUIS: SENDING A TEXT MESSAGE 85 00:09:14.124 --> 00:09:20.592 THAT THE PLAINTIFF MAY LATER NOT HAVE THE EXACT WORDS FOR BECAUSE YOU KAD THAT 86 00:09:20.592 --> 00:09:25.084 WHEN MEDIA IS INVOLVED EVERYONE HAS THE EXACT WORDS WHICH MIGHT NOT 87 00:09:25.084 --> 00:09:32.689 NECESSARILY BE THE CASE POSTS ON SOCIAL MEDIA CAN BE REMOVED, CAN BE NOT AVAILABLE 88 00:09:32.689 --> 00:09:39.344 BY THE TIME THE RUM MOR HAS ALREADY SPREAD. SO AGAIN, EVEN THOUGH EVEN THAT 89 00:09:39.344 --> 00:09:45.033 DISTINCTION THAT YOU ARE MAKING BETWEEN THE USE OF MEDIA AND THE ABILITY TO ALWAYS 90 00:09:45.033 --> 00:09:49.375 HAVE THE EXACT TERMINOLOGY WHICH I AM NOT SURE THAT IS NECESSARILY THE CASE 91 00:09:49.375 --> 00:09:54.521 EVEN THAT SEEMS WOULD LEAD TO A SIGNIFICANT AMOUNT OF CONFUSION WITH REGARD TO 92 00:09:54.521 --> 00:09:59.488 EXACTLY WHAT CATEGORY THE FALSE LIGHT CLAIM FALSE INTO DON'T YOU THINK THAT WOULD 93 00:09:59.488 --> 00:10:02.803 BE THE CASE? PETER KOBER: NO. IT WOULD NOT BE 94 00:10:02.803 --> 00:10:11.229 CONFUSION, IT WOULD RESULT IN A NEED FOR THE TRIAL COURT TO CONSIDER EACH AND EVERY 95 00:10:11.229 --> 00:10:20.053 FALSE LIGHT CLAIM ON A CASE BY CASE BASIS BASED ON THE CIRCUMSTANCES THERE, AS 96 00:10:20.053 --> 00:10:25.834 TO WHETHER OR NOT THAT FALSE LIGHT PROOIFS SEE CLAIM WOULD ALSO BE A CASE 97 00:10:25.834 --> 00:10:30.148 FOR DEFAMATION. JUSTICE WAINER APTER: I UNDERSTAND YOU TO BE 98 00:10:30.148 --> 00:10:35.112 ARGIROPOULOSING THAT IF IT IS A FALSE LIGHT CLAIM THAT COULD ALSO CONSTITUTE A 99 00:10:35.112 --> 00:10:41.141 DEFAMATION CLAIM, THAT IT WOULD HAVE A 1 YEAR STL AND THE FALSE LIGHT CLAIM THAT 100 00:10:41.141 --> 00:10:46.345 WOULD NOT CONSTITUTE COULD NOT BE STYLED AS A CLAIM FOR DEFER FLAGS NEN 101 00:10:46.345 --> 00:10:50.952 I HAD SHUT HAVE A 2-YEAR STATUTE OF LIMITATIONS. EVEN IF WE FIGURE YOUR ARGUMENT 102 00:10:50.952 --> 00:10:54.688 I AM NOT SURE WHAT THAT HAS TO DO WITH PUBLICATION AS YOU'RE SAYING OR WHY 103 00:10:54.688 --> 00:11:00.065 YOU THINK YOUR CASE WOULD FALL ON THE NON DEFAMATION SIDE. DEFAMATION AS FAR AS 104 00:11:00.065 --> 00:11:05.594 I UNDERSTAND CAN BE EITHER VERBAL OR WRITTEN, SLANDER IS SPECIFICALLY 105 00:11:05.594 --> 00:11:10.656 SPOKEN, WHEREAS LIABLE IS SPECIFICALLY WRITTEN AND DEFAMATION CAN BE SPOKEN JUST 106 00:11:10.656 --> 00:11:16.843 AS EASILY AS IT CAN BE WRITTEN. AND BOTH AN AMICUS KEY AND DEFENDANT HERE WERE 107 00:11:16.843 --> 00:11:21.682 ARGIROPOULOSING THAT THIS WOULD BE THAT YOUR CLAIM EVEN THOUGH STYLED AS FALSE 108 00:11:21.682 --> 00:11:27.316 LIGHT WITH A FALSE LIGHT LABEL ON IT, WOULD ACTUALLY CONSTITUTE NOT ONLY A CLAIM 109 00:11:27.316 --> 00:11:31.618 OF DEFAMATION BUT A CLAIM OF PER SE DEFAMATION BECAUSE THE ALLEGATION IS 110 00:11:31.618 --> 00:11:36.645 THAT THE STATEMENT WAS THAT DEFENDANT HAD BEEN ENGAGED IN SOME SORT OF CRIMINAL 111 00:11:36.645 --> 00:11:42.167 OFFENSE, WHICH IS DEFAMATION PER SE. SO CAN YOU SPEAK TO WHERE YOU ARE 112 00:11:42.167 --> 00:11:47.053 COMING UP WITH THIS DISTINCTION THAT DEFAMATION CAN NEVER BE SPOKEN? AND EVEN 113 00:11:47.053 --> 00:11:52.446 IF THAT IT WERE THE CASE, HOW YOU RESPOND TO THE ALLEGATIONS FROM AN AMICUS KEY 114 00:11:52.446 --> 00:11:58.394 AND DEFENDANT THAT YOUR CLAIM IS A CLAIM OF DEFAMATION EVEN THOUGH IT'S NOT LABELED 115 00:11:58.394 --> 00:12:02.690 AS SUCH BECAUSE IT FOLKS SES ON THE REPUTATIONAL HARM TO YOUR CLIENT AND 116 00:12:02.690 --> 00:12:08.646 INDEED FOLKS SES ON AN ALLEGATION THAT A CRIMINAL OFFENSE WAS IMPUTED TO YOUR CLIENT 117 00:12:08.646 --> 00:12:12.185 WHICH WOULD CONSTITUTE DID I HAVE MAGS PER ADVERSARY. PETER KOBER: 118 00:12:12.185 --> 00:12:24.971 YES. CERTAINLY A DEF MAGS CLAIM CAN BE SLANDER THAT IS INCLUDED IN THE UM BREL 119 00:12:24.971 --> 00:12:29.358 LA OF DEFAMATION CLAIMS. AND IN THE TYPE THAT I'M TALKING ABOUT, THE TYPE 120 00:12:29.358 --> 00:12:35.867 THAT TYPICALLY COMES ABOUT IN THE EMPLOYMENT CONTEXT, WHERE CHARGES ARE MADE 121 00:12:35.867 --> 00:12:42.510 AGAINST AN EMPLOYEE, TYPICALLY THE OFFENSE I HAVE WORDS WERE SPOKEN WORDS 122 00:12:42.510 --> 00:12:47.156 SLANDER THATS' TYPICALLY WHAT HAPPENS. AND TYPICALLY WHAT HAPPENS IS THAT THE 123 00:12:47.156 --> 00:12:57.224 CHARGEED EMPLOYEE IS BE WILD ERD AT THE TIME 1 YEAR COMES AROUND BECAUSE 124 00:12:57.224 --> 00:13:07.953 SHE DOESN'T KNOW WHAT THE WORDS SPOKEN WERE, SHE OFTEN CAN'T IDENTIFY THE INFORMANT, 125 00:13:07.953 --> 00:13:17.245 AND ALTHOUGH SHE KNOWS THE DALT WHERE THE OFFENDING OCCURRENCE OCCURRED, 126 00:13:17.245 --> 00:13:28.929 SHE DOESN'T KNOW ENOUGH ABOUT THIS TO MAKE A CLAIM OF DEFAMATION ON THE 1 YEAR 127 00:13:28.929 --> 00:13:34.585 ANNIVERSARY OF HER CLAIM. SO THAT IS TYPICALLY WHAT HAPPENS. SO LET ME GO 128 00:13:34.585 --> 00:13:40.882 ON BECAUSE I THINK TO ANSWER ALL THE JUSTICES QUESTIONS I HAVE TO EXPAND MORE WHERE 129 00:13:40.882 --> 00:13:48.470 I AM COMING FROM. AND AFTER THE CITATIONS OF CASES WHICH 130 00:13:48.470 --> 00:13:54.597 DISTINGUISH BETWEEN THE TWO, WHICH HOLD THAT THERE CAN BE FALSE LIGHT INVASION OF 131 00:13:54.597 --> 00:13:59.270 PRIVACY CASES WINBERRY REALTY NOT DEFAMATION CASES, AND I HAVE SEVERAL OF 132 00:13:59.270 --> 00:14:05.191 THOSE BESIDES KOFG TON, I HAVE MCNAMARA BEGIN IS VERSUS FISHER BROADCASTING 133 00:14:05.191 --> 00:14:15.204 INCORPORATED, 798 PENNSYLVANIA CIVIC SECOND REPORTER 1106, THAT'S AN OREGON COURT 134 00:14:15.204 --> 00:14:21.094 OF A PEELS CASE, 1990, WHICH INVOLVED A TELEVISION BROADCAST, AND IT SAYS 135 00:14:21.094 --> 00:14:27.207 A PERSON NEED NOT BE DEE FAMD TO BRING A FALSE LIGHT CLAIM. AND THAT APPEARS ON 136 00:14:27.207 --> 00:14:32.863 PAGE 1108. ALSO. CHIEF JUSTICE RABNER: MR. KOLBER, ARE ANY 137 00:14:32.863 --> 00:14:35.330 OF THESE IN YOUR WRITTEN SUBMISSIONS TO THE COURT SO FAR. 138 00:14:35.330 --> 00:14:37.431 PETER KOBER: THEY ARE NOT. CHIEF JUSTICE RABNER: THIS IS A NEW 139 00:14:37.431 --> 00:14:39.985 ARGUMENT THAT YOU ARE PRESENTING FOR THE FIRST TIME NOW. 140 00:14:39.985 --> 00:14:41.697 PETER KOBER: IT IS. CHIEF JUSTICE RABNER: SO GIVEN THAT YOU 141 00:14:41.697 --> 00:14:46.345 RESOIFD 15 MINUTES FOR YOUR PRESENTATION WHICH WE HAVE ALREADY USED, ICHL GOING 142 00:14:46.345 --> 00:14:50.999 TO SUGGEST YOU DO YOUR BEST TO TRY TO WRAN UP THIS NEW ARGUMENT AND THEN MOVER 143 00:14:50.999 --> 00:14:56.190 TO THE ARGUMENT THAUFR ADVANCED UNNLG NOW AS TO WHY THERE SHOULD BE A 2-YEAR 144 00:14:56.190 --> 00:14:59.960 AS OPPOSED TO 1 YEAR STATUTE OF LIMITATIONS SETTING ASIDE THE HYBRID SCHEME 145 00:14:59.960 --> 00:15:03.529 THAT YOU MENTIONED SO PLEASE FINISH UP THIS IF YOU COULD SUCCINCTLY AND THEN 146 00:15:03.529 --> 00:15:06.771 FOLLOW ON WITH THE ORIGINAL ARGUMENT. PETER KOBER: YES. 147 00:15:06.771 --> 00:15:15.471 I'LL MOVE ON. SO IN THE CASE WHERE THE CLAIMANT IS NOT AWARE 148 00:15:15.471 --> 00:15:24.969 OF THE WORDS USED PERHAPS NOT AWARE OF THE INFORMANT, THERE ARE WAYS IN WHICH SUCH 149 00:15:24.969 --> 00:15:33.160 A CASE COULD BE A FALSE LIGHT INVASION PRIVACY CASE BUT NOT QUALIFY AS A 150 00:15:33.160 --> 00:15:40.677 DEFAMATION CASE. AND THAT CAN HAPPEN IN AT LEAST TWO WAYS WHICH I AM NOT LIMITING 151 00:15:40.677 --> 00:15:47.016 MYSELF TO, BUT THE FIRST WAY IS IN VOI VERSUS ^ WHAT I CAN ^ WAKE FORWARD FOOD 152 00:15:47.016 --> 00:15:53.851 CORPORATION, NO THAT'S NOT IT WRONG CASE. THE FIRST WAY IS 153 00:15:53.851 --> 00:15:59.347 IN STATE PAROLE BOARD LOW VERSUS JERSEY CENTRAL POWER AND LIGHT COMPANY, A CASE 154 00:15:59.347 --> 00:16:05.753 APPEARS AT 20 NEW JERSEY MISCELLANEOUS REPORTS, 217, 26 ATLANTIC SECOND 155 00:16:05.753 --> 00:16:15.066 559 AND THE COURT THERE HELD THAT THE ALLEGATIONS IN THAT CASE DID NOT SOUND IN 156 00:16:15.066 --> 00:16:20.020 DEFAMATION SO THEY WEREN'T DEFAMATION. BUT MORE IMPORTANTLY, THE BIGGEST 157 00:16:20.020 --> 00:16:25.253 HURD WILL THAT DEFAMATION PLAINTIFFS HAVE TO OVERCOME IS THE HURD WILL PRESENTED 158 00:16:25.253 --> 00:16:33.613 BY ZONE RIFRP VERSUS OVERLOOK HOSPITAL, WHICH IS 212 NEW JERSEY SUPER. 83, 159 00:16:33.613 --> 00:16:42.613 514 AT LANT IKS SECOND REPORTS AN 53 THAT IS AN APPELLATE DIVISION CASE WHERE 160 00:16:42.613 --> 00:16:48.879 CERTIFICATION WAS DENIED BY THE SUPREME COURT 107 N.J. 32, AND THAT'S FROM 161 00:16:48.879 --> 00:16:56.613 1986. IN THAT CASE A PHYSICIAN ALLEGED DEFAMATION AND 162 00:16:56.613 --> 00:17:04.113 SLANDER AGAINST A HOSPITAL, ITS BOARD OF DIRECTORS AND COMPANY EMPLOYEES FOR CHARGES 163 00:17:04.113 --> 00:17:08.754 MADE AGAINST HER CHARJTING HER COMPETENCY. IT WAS HELD THAT A DEFAMATION 164 00:17:08.754 --> 00:17:17.191 COMPLAINT MUST PLEAD FACTS SUFFICIENT TO IDENTIFY THE DEFAMATORY WORDS, THEIR UTTER 165 00:17:17.191 --> 00:17:21.817 AND THE FACT OF THEIR PUBLICATION. A VAGUE ^ CON ^ CONNECTICUT CLUSLY 166 00:17:21.817 --> 00:17:26.332 ALLEGATION SNOTS ENOUGH. RATHER, THE COMPLAINT MUST IDENTIFY WHEN, 167 00:17:26.332 --> 00:17:31.832 WHERE, BY WHICH DEFENDANTS AND BY WHAT WORDS WRITTEN OR ORAL PLAINTIFF WAS 168 00:17:31.832 --> 00:17:38.972 DEE FAMD. SO THE BURDEN OF OVER COMING SO MANY RIFRP IS VERY 169 00:17:38.972 --> 00:17:46.832 REAL ON DEFAMATION CLAIMS. SO IN THE EXAMPLES THAT I'VE BEEN PRESENTING, VERY 170 00:17:46.832 --> 00:17:54.520 OFTEN BECAUSE A PLAINTIFF CAN'T OVERCOME THAT CASE, A POTENTIAL DEFAMATION 171 00:17:54.520 --> 00:17:59.051 PLAINTIFF WILL NOT QUALIFY AS DEFAMATION PLAINTIFF BUT THAT PLAINTIFF COULD QUALIFY 172 00:17:59.051 --> 00:18:05.533 AS A FAUMS LIGHT INVASION OF PRIVACY PLAINTIFF. AND I'M SUGGESTING THAT 173 00:18:05.533 --> 00:18:09.617 THAT TYPE OF PLAINTIFF SHOULD BE SUBJECT TO THE 2-YEAR STATUTE OF LIMITATIONS. 174 00:18:09.617 --> 00:18:13.825 ONE QUICK. JUSTICE WAINER APTER: IF YOU COULD CLARIFY 175 00:18:13.825 --> 00:18:17.664 DO YOU HAVE ANY CASE EXPLAINING THAT A MRV CAN SUE FOR FALSE LIGHT IF THEY DON'T 176 00:18:17.664 --> 00:18:21.985 ALLEGE THAT ANY PARTICULAR WORDS THAT WERE UTTERED BY ANY PARTICULAR PERSON? 177 00:18:21.985 --> 00:18:32.184 YOU'RE SAYING IF YOU DON'T KNOW WHO SAID THE DID HE FANL TRI STAM OR WHAT WAS SAID, YOU 178 00:18:32.184 --> 00:18:35.667 CAN'T SUE FOR DEFAMATION. BUT WHAT COURT SAYS THAT IF YOU DOEFRNT KNOW 179 00:18:35.667 --> 00:18:40.540 WHO SAID WHAT, YOU CAN STILL SUE FOR FALSE LIGHT? PETER KOBER: 180 00:18:40.540 --> 00:18:48.354 THE CASES DEFINING THE ELEMENTS OF FALSE LIGHT DO NOT SAY WHAT THEY DO NOT SAY 181 00:18:48.354 --> 00:18:53.066 IS WHAT'S IMPORTANT HERE THEY DO NOT SAY THAT THE WORDS HAVE TO BE IDENTIFIED. 182 00:18:53.066 --> 00:18:56.526 JUSTICE WAINER APTER: I AM NOT SURE WHERE YOU ARE GITING 183 00:18:56.526 --> 00:19:00.551 THAT I AM LOOKING IN REMAIN VERSUS CALIFORNIA JER, WHICH SAYS THAT TO PROVE 184 00:19:00.551 --> 00:19:04.459 FALSE LIGHT A MRV MUST SHOW THAT THE #2KE69 HAD KNOWLEDGE OF OR ACTED IN 185 00:19:04.459 --> 00:19:08.965 RECKLESS DISREGARD AS TO THE FAUMS TEE OF THE PUBLISHED MATTER AND THE FALSE LIGHT 186 00:19:08.965 --> 00:19:12.906 IN WHICH THE PLAINTIFF WOULD BE PLACED. WHICH SEEMS THAT IS A NEW JERSEY 187 00:19:12.906 --> 00:19:16.795 CASE THAT SEEMS TO INDICATE BOTH YOU NEED TO HAVE KNOWLEDGE OF THE DEFENDANT WHO 188 00:19:16.795 --> 00:19:21.160 PUBLICIZED THE MATTER, AND THE DEFENDANT HAD TO ACT IN RECKLESS DISREGARD 189 00:19:21.160 --> 00:19:24.730 AS TO THE FALSITY OF THE PUBLISHED MATTER WHICH SEEMS TO MEAN YOU HAVE TO HAVE 190 00:19:24.730 --> 00:19:28.209 SOME SORT OF FALSE PUBLICIZED MATTER. PETER KOBER: YES. 191 00:19:28.209 --> 00:19:34.069 BUT YOU DON'T HAVE TO HAVE THE WORDS. YOU CAN HAVE SOME IDEA OF THE GIST THE 192 00:19:34.069 --> 00:19:38.497 OF THE FALSELY PUBLISHED MATTER WITHOUT KNOWING THE WORDS THAT WERE USED. 193 00:19:38.497 --> 00:19:40.024 JUSTICE WAINER APTER: WHICH CASE SAYS THAT, THAT YOU DON'T 194 00:19:40.024 --> 00:19:43.778 NEED WORDS YOU CAN JUST HAVE THE GIST THE THAT SOMETHING FALSE MAY HAVE BEEN STATED. 195 00:19:43.778 --> 00:19:46.893 PETER KOBER: NO CASE ADDRESS EAST THAT BUT THE CASES ARE 196 00:19:46.893 --> 00:19:53.356 UNIFORM IN TELLING US WHAT IS NOT REQUIRED WHEN THEY LIST THE ELEMENTS KNOWING 197 00:19:53.356 --> 00:19:58.566 WHAT THE WORDS WERE IS NOT REQUIRED IN A FALSE LIGHT INVASION OF MRIEFRS 198 00:19:58.566 --> 00:20:02.225 SEE CLAIM. CHIEF JUSTICE RABNER: MR. KOLBER FIRST CORRECTLY 199 00:20:02.225 --> 00:20:06.785 YOU ARE STILL ON THE ARGUMENT THE NOVEL NEW ARGUMENT THAT CERTAIN FALSE LIGHT CLAIMS 200 00:20:06.785 --> 00:20:09.783 WOULD HAVE A 1 YEAR AND CERTAIN KWO HAVE A 2-YEAR STATUTE OF LIMITATIONS. 201 00:20:09.783 --> 00:20:14.637 THIS IS ASZ I AM SURE YOU CAN UNDERSTAND THIS IS NOT HOW ORAL ARGUMENT TYPICALLY 202 00:20:14.637 --> 00:20:18.933 PROCEED WHERE THE COURT AND OPPOSING COUNSEL ARE HEARING NEW ARGUMENTS FOR 203 00:20:18.933 --> 00:20:23.401 THE VERY FIRST TIME AND WE EVER SPENT NOW A GOOD DEAL V TIME ON THIS SO I AM GOING TO 204 00:20:23.401 --> 00:20:26.972 ASK YOU TO MOVE TO THE ARGUMENT THAT YOU HAD PRESENTED TO THE COURT IN THE 205 00:20:26.972 --> 00:20:33.172 CERT PETITION AND IN THE BRIEFING IN THIS INDICATION AND SUCCINCTLY GIVE IT TO 206 00:20:33.172 --> 00:20:35.894 US IN THE NEXT IF YOU MINUTES, PLEASE. PETER KOBER: THE ARGUMENT 207 00:20:35.894 --> 00:20:43.890 THERE IS ONE THAT I HAVE BEEN PERSUADED WAS WRONG BASED ON THE AM KUS BRIEF. 208 00:20:43.890 --> 00:20:53.211 I THINK THAT SWAN WAS DECIDED IN THE WAY IT WAS BECAUSE IT FALSE LIGHT INVASION 209 00:20:53.211 --> 00:20:58.851 OF PRIVACY PRESENTS A SPECIAL A SPECIAL TYPE OF CLAIM. THERE IS A DANGER THAT 210 00:20:58.851 --> 00:21:03.769 A FALSE LIGHT INVASION OF PRIVACY CLAIM WILL BE USED TO CIRCUMSTANCE VINTD THE 211 00:21:03.769 --> 00:21:10.535 1 YEAR STATUTE OF LIMITATIONS. AND THAT CAN'T BE ALLOWED BY THE COURTS KWIETD 212 00:21:10.535 --> 00:21:13.933 FRANKLY. THAT IS SOMETHING THAT IS INTOLERABLE. CHIEF JUSTICE RABNER: 213 00:21:13.933 --> 00:21:20.603 I MEAN THIS IN NOT IN AN ARGUMENTATIVE WAY IS THERE A REASON YOU DIDN'T PRESENT 214 00:21:20.603 --> 00:21:25.669 IN ADVANCE OF ORAL ARGUMENT THE NEW THEORY THAT YOU ARE ADVANCING TODAY AS YOU ARE 215 00:21:25.669 --> 00:21:37.817 ARGUESING? PETER KOBER: I UNDERSTAND THE COURT'S CONCERN 216 00:21:37.817 --> 00:21:47.259 HERE. YEAH, TIME CONSTRAINTS WERE THE ONLY REASON. CHIEF JUSTICE 217 00:21:47.259 --> 00:21:50.694 RABNER: PLEASE DO YOUR BEST TO BRING YOUR ARGUMENT TO A CONCLUSION. I UNDERSTAND 218 00:21:50.694 --> 00:21:53.868 YOU ARE NO LONGER VANTSING THE ORIGINAL POSITION. PETER KOBER: 219 00:21:53.868 --> 00:21:57.555 ALL RIGHT. OKAY. SO, TO BRING MY ARGUMENT TO A CONCLUSION, 220 00:21:57.555 --> 00:22:19.173 I NOW ADVOCATE A STANDARD THAT ACTUALLY HAS BEEN ADOPTED BY A NUMBER OF COURTS. 221 00:22:19.173 --> 00:22:24.387 SO I TURN THE COURTS TAENGS TO IN A GENERAL IS VERSUS FISHER BROADCASTING 222 00:22:24.387 --> 00:22:32.574 INCORPORATED, 798 PENNSYLVANIA CIVIC REPORTER SECOND, 1106, THAT IS AN OREGON 223 00:22:32.574 --> 00:22:38.710 COURT OF A PEELS CASE 1990 WHICH INVOLVED A TELEVISION BROADCAST. AND IN 224 00:22:38.710 --> 00:22:47.undefined THAT CASE THE CONCLUSION VT COURT WAS WHEN A CLAIM CHARACTERIZED AS FALSE LIGHT 226 00:22:52.858 --> 00:22:57.912 FILED WITHIN THE PERIOD FOR BRICKING A DEFAMATION CLAIM. SO 227 00:22:57.912 --> 00:23:03.828 THERE MA GENERAL IS RECOGNIZED THE QUALIFIER THAT THE CLAIM CHARACTERIZED AS 228 00:23:03.828 --> 00:23:08.833 FALSE LIGHT MUST ALSO ALLEGE FACTS THAT COULD ALSO CONSTITUTE A CLAIM FOR 229 00:23:08.833 --> 00:23:16.867 DEFAMATION. ANOTHER CASE IS GENERAL SON VERSUS SOIRS, 130 PENNSYLVANIA SIVENG 230 00:23:16.867 --> 00:23:24.320 THIRD REPORTER 325, UTAH 2005 INVOLVING A TELEVISION BROADCAST. THAT CASE 231 00:23:24.320 --> 00:23:31.872 THE STATUTE OF LIMITATIONS FOR DEFAMATION GORNS CLAIMS BASED ON THE SAME OPERATIVE 232 00:23:31.872 --> 00:23:38.301 FACTS THAT WOULD SUPPORT A DEFAMATION ACTION. IN RECOGNITION FRLT POSSIBLE 233 00:23:38.301 --> 00:23:42.859 THAT A FALSE LIGHT INVASION OF PRIVACY CLAIM MAY TURN ON OPERATIVE FACTS THAT DO 234 00:23:42.859 --> 00:23:47.256 NOT INCLUDE DEFAMATION, WE FURTHER LIMIT OUR HOLDING TO THE FACTS PRESENT 235 00:23:47.256 --> 00:23:54.490 HERE AND WE EXTEND THE 1 YEAR LIMIT OF FALSE LIGHT INVASION CLAIMS THAT NO FROM 236 00:23:54.490 --> 00:24:06.009 THE FACTS HERE WHICH WERE MEDIA STATEMENTS. SWAN ITSELF 237 00:24:06.009 --> 00:24:10.469 COMMUNITY SUPERVISION FOR LIFE GOT TO THIS SAME CONCLUSION. IN SWAN IT SAYS THAT 238 00:24:10.469 --> 00:24:16.763 WE HOEMD THAT WE PREDICT THE SUPREME COURT WOULD CONCLUDE THAT THE 1 YEAR STATUTE 239 00:24:16.763 --> 00:24:22.224 OF LIMITATIONS GOVERNING DEFAMATION ACTIONS WOULD BE APPLIED IN A FALSE LIGHT 240 00:24:22.224 --> 00:24:29.176 ACTION. THAT WAS CLEARLY GROUNDED IN ALLEGATIONS WHICH WERE DEFAMATORY. 241 00:24:29.176 --> 00:24:36.930 THAT'S IN SWAN ITSELF. AND IT IS CONCLUSION IS ALSO CONSISTENT WITH THE 242 00:24:36.930 --> 00:24:43.136 RESTATEMENT SEK OF TORTS ITSELF WHICH SAYS WHEN THE FALSE PUBLICITY IS ALSO 243 00:24:43.136 --> 00:24:48.792 DEFAMATORY, SO THAT EITHER ACTION CAN BE MAINTAINED BY THE PLAINTIFF, IT IS 244 00:24:48.792 --> 00:24:53.147 ARGIROPOULOS ABL THAT LIMITATIONS OF LONG STANG THAT HAVE BEEN FOUND DESIRABLE 245 00:24:53.147 --> 00:24:58.005 FOR THE AK OF DEFAMATION SHOULD NOT BE SUCCESSFULLY EVADED BY PROCEEDING UPON A 246 00:24:58.005 --> 00:25:02.078 DIFFERENT THEORY OF LATER ORIGIN IN A DEVELOPMENT OF WHICH THE TAENGS OF THE 247 00:25:02.078 --> 00:25:05.770 COURTS HAS NOT BEEN DIRECTION TO THE LIMITATIONS. AND THAT A POOERGS IN 248 00:25:05.770 --> 00:25:15.833 RESTATEMENT SECOND V TORTS SECTION 652 E, 1977, COMMENT E. SO 249 00:25:15.833 --> 00:25:23.021 TO SUMMARIZE MY POSITION THAT I ADVOCATE FORLT RESOLUTION OF THIS CASE IS A REMAND 250 00:25:23.021 --> 00:25:29.787 TO THE TRIAL COURT FOR A DETERMINATION AS TO WHETHER THIS CASE, ITS FACTS, 251 00:25:29.787 --> 00:25:37.474 QUALIFICATIONS ALSO AS A DEFAMATION CASE. JUSTICE NORIEGA: JUST 252 00:25:37.474 --> 00:25:42.880 TO BE CLEAR IF IT DOES QUALIFY AS A TEFR MAGS CASE IT OUTSIDE OF THE 1 YEAR 253 00:25:42.880 --> 00:25:44.930 STATUTE OF LIMITATIONS. PETER KOBER: IF THE CASE DOES QUALIFY AS 254 00:25:44.930 --> 00:25:48.506 A DEFAMATION CASE, IT IS SUBJECT TO THE 1 YEAR STATUTE OF LIMITATIONS. 255 00:25:48.506 --> 00:25:54.585 IF THE CASE WOULD NOT QUALIFY AS A DEFAMATION CASE, FOR THE REASONS WE'VE 256 00:25:54.585 --> 00:25:59.787 DISCUSSED HERE IN THIS ARGUMENT OR ANY OTHER REASON, THEN IT OUGHT TO BE 257 00:25:59.787 --> 00:26:04.677 SUBJECT TO THE 2-YEAR STATUTE OF LIMITATIONS FOR PERSONAL INJURY ACTIONS. BECAUSE 258 00:26:04.677 --> 00:26:11.451 THE REASON FOR HAVING A 1 YEAR STATUTE OF LIMITATIONS BECAUSE OF FALSE LIGHT 259 00:26:11.451 --> 00:26:17.461 INVASION OF PRIVACY CLAIM COULD ALSO BE A DEFENSE MALGS CLAIM THE REASON NO LONGER 260 00:26:17.461 --> 00:26:23.379 EXISTS IF THE FALSE LIGHT INVASION OF PRIVACY CLAIM WOULD NOT QUALIFY AS A 261 00:26:23.379 --> 00:26:26.914 DEFAMATION CLAIM. SO IT SHOULD BE SUBJECT TO THE 2-YEAR STATUTE OF LIMITATIONS. 262 00:26:26.914 --> 00:26:33.663 UNDER THOSE CIRCUMSTANCES. FOR PERSONAL INJURY ACTIONS. LOVE WHO HAVE 263 00:26:33.663 --> 00:26:42.170 I HAVE ONE FOLLOW UP IF THAT'S OKAY. COUNSELOR I ASSUME THEN THAT ANALYSIS. 264 00:26:42.170 --> 00:26:45.976 JUSTICE HOFFMAN: WHO HAVE WHETHER THE COMPANY SIENLT IS NOT WOULD BE KUKD 265 00:26:45.976 --> 00:26:53.383 PURNT TO ANALYSIS OF THE CONDUCT AT ISSUE PURNT TO A CASE AND NOT AN ANALYSIS 266 00:26:53.383 --> 00:26:58.319 OF THE CLAIM OR THE INJURY BUT AT THE CONDUCT, RIGHT? PETER KOBER: 267 00:26:58.319 --> 00:27:04.059 I'M SORRY JUSTICE HOFFMAN I AM HAVING TROUBLING HEARING YOU. 268 00:27:04.059 --> 00:27:11.258 JUSTICE HOFFMAN: I AM ASSUMING THAT THE ANALYSIS THAT YOU ARE TALKING ABOUT WOULD BE 269 00:27:11.258 --> 00:27:18.440 KUKD WOULD BE KUKD PURNT TO CONDUCT ONE THE ANALYSIS OF THE CONDUCT NOT 270 00:27:18.440 --> 00:27:24.352 OF THE CLAIM, NOT OF THE INJURY BUT AS MCNAMARA GROWING AND SAYS, CONDUCT IS MOST 271 00:27:24.352 --> 00:27:27.815 CRITICAL IN DETERMINEING WHETHER THEY ARE SIMILAR THE CLAIMS ARE SIMILAR 272 00:27:27.815 --> 00:27:32.709 OR DISTINCT. ARE YOU GREEG WITH ME THAT THAT ANALYSIS WOULD BE ONE OF CONDUCT? 273 00:27:32.709 --> 00:27:38.565 PETER KOBER: THE TRIAL JUDGES' ANALYSIS WOULD BE ONE OF 274 00:27:38.565 --> 00:27:43.518 CONDUCT HOW THE OFFENSIVE COMMUNICATION WAS COMMUNICATED. THAT WOULD BE THE NATURE 275 00:27:43.518 --> 00:27:49.856 OF THE CONDUCT. THAT WOULD BE THE NATURE OF THE ANALYSIS TOO. WAS THE 276 00:27:49.856 --> 00:27:57.937 AGGRIEVED PERSON IN A POSITION TO HAVE ENOUGH KNOWLEDGE OF WHAT WAS COMMUNICATED 277 00:27:57.937 --> 00:28:06.861 TO ALSO HAVE BEEN QUALIFIED TO FILE A DEFAMATION CLAIM. THE 278 00:28:06.861 --> 00:28:09.919 CLERK: THANK YOU VERY MUCH COUNSEL I AM GOING TO ASK THAT WE SPAUS HERE BECAUSE 279 00:28:09.919 --> 00:28:16.288 WE HAVE LOST THE CHIEF JUSTICE Z KUKT I HAVE THE I WANT TO HAVE HIM REKEK 280 00:28:16.288 --> 00:28:22.832 BEFORE WE RECONVENE. WE ARE AT THIS MOMENT HOWEVER STILL WEB 281 00:28:22.832 --> 00:28:46.319 CASTING. WE SHOULD BE PAUSED ON THE LIFE STREEM. STAND BY 282 00:28:46.319 --> 00:36:45.076 WE WILL TRY TO GET THE CHIEF BACK. CHIEF JUSTICE RABNER: SORRY 283 00:36:45.076 --> 00:36:48.531 RESPECT I CAN EXPLAIN WHY THAT HAPPENED BUT I AM HAEP TO BE BACK WITH YOU. 284 00:36:48.531 --> 00:36:57.310 THE CLERK: CHIEF WE HAD TAKEN US DOWN OFF THE LIFE STREEM 285 00:36:57.310 --> 00:37:00.870 SO WITH YOUR PERMISSION WE WILL GET THAT RESTARTED AND RESUME THE PROCEEDING. 286 00:37:00.870 --> 00:37:06.418 CHIEF JUSTICE RABNER: THAT WOULD BE GREAT. MR. KOLB FINISH 287 00:37:06.418 --> 00:37:17.806 UNYOUR ARGUMENT AT THAT POINT. PETER KOBER: I DID FINISH. 288 00:37:17.806 --> 00:37:19.902 CHIEF JUSTICE RABNER: PLEASE GO AHEAD. PETER KOBER: I DID 289 00:37:19.902 --> 00:37:21.944 FINISH MR. CHIEF JUSTICE. CHIEF JUSTICE RABNER: VERY WELL 290 00:37:21.944 --> 00:37:44.485 MR. ROSS. CHRISTOPHER J. ROSS: THANK YOU, YOUR HONOR, MAY IT 291 00:37:44.485 --> 00:37:44.490 PLEASE THE COURT. I WOULD LIKE TO USE MY TIME TO REORIENT THE COURT. 292 00:37:44.490 --> 00:37:47.037 THE ISSUE BEFORE THIS COURT IS IT IS MY POSITION IT DOES HAVE A ONE-YEAR STATUTE 293 00:37:47.037 --> 00:37:53.530 OF LIMITATION. IN SWAN, THE APPELLATE DIVISION RELIED, FALSE 294 00:37:53.530 --> 00:37:59.982 LIGHT INVASION OF PRIVACY SUBJECT TO A ONE-YEAR STATUTE OF LIMITATION BUT A LITIGANT 295 00:37:59.982 --> 00:38:08.167 CANNOT SIMPLY REPACKAGE THEIR FALSE. THIS MATTER FACTUALLY 296 00:38:08.167 --> 00:38:16.014 AND LEGALLY IT IS SO ON POINT THAT MY OPPOSING COUNSEL THAT I CONCEDED THAT 297 00:38:16.014 --> 00:38:22.222 SWAN REQUIRED A DISMISSAL OF THIS CASE. HONESTLY, SWAN HAD WARNED US 298 00:38:22.222 --> 00:38:28.854 OF THE CONDUCT OF REPACKAGING THAT CLAIM WHICH IS IN MY OPINION OUR. 299 00:38:28.854 --> 00:38:33.838 THE COURT HAD WARNED TO ALLOW SOMEONE TO TAKE A DEFAMATION CLAIM AND BELABOR 300 00:38:33.838 --> 00:38:39.085 IT AS FALSE LIGHT CLAIM WOULD CONDONE A TRANSPARENT EVASION OF THE ONE-YEAR 301 00:38:39.085 --> 00:38:44.232 STATUTE OF LIMITATIONS IN NEW JERSEY. THERE IS A CLEAR TRANSPARENT EVASION IN 302 00:38:44.232 --> 00:38:48.668 THIS CASE. THE LFS IN SWAN AND IN THIS CASE HAD USED SIMILAR 303 00:38:48.668 --> 00:38:53.670 LANGUAGE TO DESCRIBE THEIR CLAIMS BOTH ALLEGED THAT THE STATEMENTS WERE FALSE OR 304 00:38:53.670 --> 00:38:58.136 ACTED IN RECKLESS DISREGARD OF THEIR FALSITY AND THAT THE STATEMENTS WOULD 305 00:38:58.136 --> 00:39:02.646 BE HIGHLY OFFENSIVE TO A REASONABLE PERSON. MOST IMPORTANTLY ALL REP 306 00:39:02.646 --> 00:39:10.401 UTATION NATURAL HARM WAS IN ALLEGED IN SWAN AND ONLY IN THIS CASE. 307 00:39:10.401 --> 00:39:14.826 SWAN WAS CORRECT LEGALLY, THIS IS NOT PULLED OUR LEGAL REASONING OUT OF THIN AIR, 308 00:39:14.826 --> 00:39:21.612 THEY RELIED ON THIS COURT'S GUIDANCE IN A CASE IN 1994, IN THAT CASE, THIS COURT 309 00:39:21.612 --> 00:39:28.127 UNDERTOOK AN NAILS ON INVASION OF PRIVACY AS A WHOLE, IN THAT CASE IT WAS ISSUES 310 00:39:28.127 --> 00:39:34.501 IN SECLUSION, HOWEVER THEY DID SEE HOW IT WAS TREATED IN OTHER STATES. IT WAS 311 00:39:34.501 --> 00:39:39.229 DEFAMATION IN OUR STATE AS SUBJECT TO THE ONE-YEAR STATUTE OF LIMITATIONS. 312 00:39:39.229 --> 00:39:48.046 THE COURT IN ROB, CLEARLY RECOGNIZED THE DIFFERENCES AND THE 313 00:39:48.046 --> 00:39:53.901 INTRUSIONS AND IN RECOGNIZING THOSE DIFFERENCES THEY HELD THAT AN INTRUSION CLAIM 314 00:39:53.901 --> 00:39:59.533 IS SUBJECT TO A TWO-YEAR STATUTE OF LIMITATIONS. HOWEVER THEY DID NOT 315 00:39:59.533 --> 00:40:05.006 ULTIMATELY HAVE TO MAKE A FINDING ON THE FALSE LIGHT CLAIM. CHIEF 316 00:40:05.006 --> 00:40:11.497 JUSTICE I HAD UNDERSTOOD MY ADVERSARY PRIOR TO TODAY TO MEAN THAT SWAN WAS 317 00:40:11.497 --> 00:40:17.493 INCORRECTLY DECIDED BECAUSE IT FAILED TO CONSIDER TWO OTHER CASES, MY POSITION 318 00:40:17.493 --> 00:40:23.414 IS THAT IF WE EXAMINE IT THROUGH MONDAY TELL AND MAK GROWING BEGAN FRAMEWORK, IT WOULD 319 00:40:23.414 --> 00:40:27.371 REQUIRE THE DISMISSAL OF THE PLAINTIFF'S CLAIM BECAUSE IT WOULD LOOK TO 320 00:40:27.371 --> 00:40:32.621 THE INJURY. LOOKING TO THE INJURY THE ONLY INJURY ALLEGED IS 321 00:40:32.621 --> 00:40:42.991 DAMAGE TO REPUTATION NATURAL HARM. THAT IN TURN TO A DEFAMATION SIDE IS REPUTATION 322 00:40:42.991 --> 00:40:50.348 NATURAL HARM. FINALLY, IF WE COULD SIMPLY REPACKAGE YOUR CLAIM 323 00:40:50.348 --> 00:40:56.496 TO AVAIL YOURSELF OF THE LONGER STATUTE OF LIMITATIONS, WHAT IS TO STOP EVERYBODY 324 00:40:56.496 --> 00:41:00.335 FROM DOING THE SAME. THE APPELLATE COURT HAS BEEN CONSISTENT 325 00:41:00.335 --> 00:41:04.232 IN HOLDING THAT YOU CANNOT SIMPLY REPACKAGE YOUR CLAIM AND THEY HAVE 326 00:41:04.232 --> 00:41:09.730 HELD THAT PRIOR TO SWAN. THEY HELD IT IN SWAN AND THEY CONTINUE TO HOLD THAT AFTER 327 00:41:09.730 --> 00:41:14.328 SWAN. THE STATUTE OF LIMITATIONS IS SUPPOSED TO PROVIDE 328 00:41:14.328 --> 00:41:20.422 EFFICIENCY AND ANALYZE DELAY. REFAIKING IS DONE IN THIS CASE, YOU ARE LOOKING IN 329 00:41:20.422 --> 00:41:25.137 THE FACE OF THE GENERAL PRINCIPLES OF STATUTE OF LIMITATIONS. 330 00:41:25.137 --> 00:41:29.082 IT IS UNDISPUTED THAT THE PLAINTIFF HERE HAS FILED HIS CLAIM APPROXIMATELY ALMOST 331 00:41:29.082 --> 00:41:33.826 TWO YEARS AFTER THE ALLEGED PUBLICATION, WHICH WOULD BE A VIOLATION OF THE 332 00:41:33.826 --> 00:41:42.014 ONE-YEAR STATUTE OF LIMITATIONS OF DEFAMATION SO WE ARE REQUESTING THEY AFFIRM THE 333 00:41:42.014 --> 00:41:48.617 APPELLATE DIVISION FOR REPACKAGING AND A LOU A ONE YEAR STATUTE OF LIMITATIONS 334 00:41:48.617 --> 00:41:54.818 APPLY AND THAT WOULD CONCLUDE MY OPENING STATEMENT. CHIEF JUSTICE 335 00:41:54.818 --> 00:42:00.418 RABNER: QUESTIONS ANYONE? MR. ROSS, IS THERE ANYTHING YOU WOULD 336 00:42:00.418 --> 00:42:04.974 LIKE TO EXPOUND UPON? CHRISTOPHER J. ROSS: YOUR HONOR, I 337 00:42:04.974 --> 00:42:10.691 WOULD ATTEMPT TO ADDRESS MR. KOBER'S ARGUMENT, THE ONLY THING I WOULD ADD 338 00:42:10.691 --> 00:42:15.828 TO HIS POSITION IS THE STANDARD HE IS ADVOCATING FOR IN ITS ENTIRETY, YOUR HONOR, 339 00:42:15.828 --> 00:42:22.186 CHIEF JUSTICE HAS COMMEND ON THAT, THAT IT WOULD BE CONFUSING. FROM 340 00:42:22.186 --> 00:42:26.652 MY POSITION, YOUR HONOR, I DON'T SEE HOW IT COULD BE A WORKABLE STANDARD IF THE 341 00:42:26.652 --> 00:42:30.622 THRESHOLD DETERMINATION IS MADE BY THE TRIAL COURT, HOW WOULD A LITIGANT 342 00:42:30.622 --> 00:42:35.788 SUCH AS AN ATTORNEY IN MY POSITION OR MY CLIENT KNOW REALLY WHAT WE'RE DEFENDING 343 00:42:35.788 --> 00:42:39.839 AGAINST UNTIL THAT THRESHOLD DETERMINATION IS MADE. WHAT I 344 00:42:39.839 --> 00:42:45.809 MEAN BY THAT IS IF A PLAINTIFF HAS FILED A COMPLAINT, DO I THEN HAVE TO FILE A 345 00:42:45.809 --> 00:42:50.067 MOTION TO HAVE THE DISCRIMINATION MADE, IS IT MADE TO BE SPONSORED BY THE 346 00:42:50.067 --> 00:42:54.496 COURT. NOW I AM EXTENDING RESOURCES TO TRY TO ADDRESS THIS 347 00:42:54.496 --> 00:42:59.086 THRESHOLD CONCERN AND I DON'T THINK THERE IS GOING TO BE ANY CONCRETE INFORMATION 348 00:42:59.086 --> 00:43:04.118 THE LITIGANT IS GOING TO HAVE UNTIL THE THAT IS MADE WHICH COULD CHANGE A 349 00:43:04.118 --> 00:43:09.461 NUMBER OF THINGS THAT I DON'T BELIEVE REALLY XOERTS WITH THE GENERAL PRINCIPLES 350 00:43:09.461 --> 00:43:15.638 OF THE FACTS OF LAW IN THIS ESTATE. JUSTICE WAINER APTER HAD 351 00:43:15.638 --> 00:43:21.406 RAISED A GOOD POINT REGARDING SLANDER AND LIABLE, IT SOUNDS TO ME THAT MR. KOBER 352 00:43:21.406 --> 00:43:28.577 IS ADVOCATING WE NOW CREATE A FIFTH INVASION OF PRIVACY CLAIM OR WE BIFURCATE FALSE 353 00:43:28.577 --> 00:43:33.933 LIGHT INTO TWO BASKETS, HOWEVER SLANDER AND LIGHT IS SUBJECT TO THE SAME 354 00:43:33.933 --> 00:43:38.508 STATUTE OF LIMITATIONS IN THIS CASE AND I BELIEVE THIS COURT, IF IT WERE TO ENTERTAIN 355 00:43:38.508 --> 00:43:44.660 IT SHOULD REMAIN CONSISTENT AND HOLD THAT EVEN IF WE WERE TO BIFURCATE THAT, 356 00:43:44.660 --> 00:43:49.461 IT SHOULD BE HELD TO THE SAME STATUTE OF LIMITATIONS TO DO OTHERWISE WOULD LEAD 357 00:43:49.461 --> 00:43:54.591 TO GIN EFFICIENCY AND CONFUSION. JUSTICE HOFFMAN: I WANT 358 00:43:54.591 --> 00:44:03.090 TO FOLLOW UP A LITTLE BIT ON YOUR QUESTION. IT FEELS LIKE 359 00:44:03.090 --> 00:44:14.884 SWAN TALKS ABOUT. IT FEELS LIKE MONDAY TELL IS THE FACT THAT IT 360 00:44:14.884 --> 00:44:24.669 NEEDS TO BE ANALYZED. AND WITH MEGARO BEGIN. MAYBE 361 00:44:24.669 --> 00:44:31.149 YOU CAN HELP ME UNDERSTAND HOW IT IS THAT YOU THINK THOSE THREE HOLDINGS WOULD 362 00:44:31.149 --> 00:44:38.487 SEEM TO TALK ABOUT A DIFFERENT PERSPECTIVE IN ANALYZING WHAT STATUTE. 363 00:44:38.487 --> 00:44:42.739 CHRISTOPHER J. ROSS: SURE, JUSTICE HOFFMAN. I HAVE KIND OF TRIED 364 00:44:42.739 --> 00:44:47.770 TO FIGURE THAT OUT MYSELF AND MY ANSWER WOULD BE TWO PARTS. I ANY MY GENERAL ANSWER 365 00:44:47.770 --> 00:44:54.262 WOULD BE THAT SWAN WAS FOLLOWING THE LEGAL FOLLOWING, AND IN MY OPINION, 366 00:44:54.262 --> 00:44:58.854 THE SWAN COURT WOULDN'T HAVE TO GO THROUGH THE ENTIRE FRAMEWORK BECAUSE THIS COURT 367 00:44:58.854 --> 00:45:05.379 HAD ALREADY PROVIDED ITS GUIDANCE SO THAT NEEDED TO BE TREATED. 368 00:45:05.379 --> 00:45:08.912 HOWEVER THE WAY I UNDERSTAND IT, YOUR HONOR IS MONDAY TELL WOULD TELL US THE 369 00:45:08.912 --> 00:45:14.482 NATURE OF THE INJURY AND THAT WOULD BE THE THRESHOLD, PARDON ME FOR USING THE 370 00:45:14.482 --> 00:45:18.293 WORD THRESHOLD BUT THAT WOULD BE THE STARTING POINT OF THAT ANALYSIS AND 371 00:45:18.293 --> 00:45:23.807 WE LIKE AT THE NATURE OF THE INJURY AND FIND IN OUR CASE THE NATURE OF THE INJURY 372 00:45:23.807 --> 00:45:30.672 IS REPUTATION AL HARM. AFTER WE LOOK AT THE NATURE OF THE INJURY 373 00:45:30.672 --> 00:45:33.828 WE THEN LOOK AT THE CONDUCT BECAUSE YOU HAVE TO LOOK AT THE KUBLTH ON A 374 00:45:33.828 --> 00:45:38.488 CASE-BY-CASE BASIS. I BELIEVE BY APPLYING THAT FRAMEWORK WOULD BE 375 00:45:38.488 --> 00:45:43.017 M O N T E L SAYS LOOK AT THE NATURE OF THE INJURY, THE GENERAL CHARACTERIZATION 376 00:45:43.017 --> 00:45:50.157 OF WHAT TYPE OF INJURY DOES THAT PLAINTIFF TYPE. AND IN M O N T E L IT LOOKED 377 00:45:50.157 --> 00:45:56.502 AT NEW JERSEY HELD DEFAMATION CLAIMS, SUBJECT TO A TWO-YEAR STATUTE OF 378 00:45:56.502 --> 00:46:00.806 LIMITATIONS FOR INJURIES TO THE PERSON, SO AFTER YOU LOOK AT WHAT THE GENERAL 379 00:46:00.806 --> 00:46:05.189 CHARACTERIZATION OF THAT INJURY, I THINK THEN WE GO INTO WHAT CONDUCT HAS BEEN 380 00:46:05.189 --> 00:46:10.048 ALLEGED IF THAT MAKES SENSE TO URGE R YOUR HONOR. JUSTICE HOFFMAN: 381 00:46:10.048 --> 00:46:18.964 IT DOES MAKE SENSE AND I THINK IT'S A LAUDABLE EFFORT. I AM NOT POSITIVE THAT 382 00:46:18.964 --> 00:46:28.313 REGARDING POSIT THE INJURY, I THINK WHAT WE MIGHT SIGH IS INJURY HELPS INFORM 383 00:46:28.313 --> 00:46:36.251 A KUSHTH, BUT CONDUCT IS THE ANALYSIS THAT IS MOST LIKELY, BUT I THINK BOTH OF 384 00:46:36.251 --> 00:46:43.426 US SAY THOSE CASES. CHRISTOPHER J. ROSS: I DON'T NECESSARILY 385 00:46:43.426 --> 00:46:48.996 DISAGREE WITH YOUR HONOR. I THINK IN MY MIND, TRYING TO APPLY TO THIS CASE, 386 00:46:48.996 --> 00:46:54.586 I LOOK AT IT AS A TWO-STEP PROCESS JUST BY SOME OF THE LANGUAGE NEW JERSEY HAS 387 00:46:54.586 --> 00:46:59.385 USED BUT I DON'T THINK IT'S A FORMAL STEP ONE AND THEN WE GO TO STEP TWO. 388 00:46:59.385 --> 00:47:04.576 IF THAT'S HOW IT SEEMS I'M ADVOCATING THAT CASE, I DON'T MEAN 389 00:47:04.576 --> 00:47:11.218 TO. THAT'S HOW I'VE DEVELOPED A RATIONALE AS TO HOW WE CAN PUT THOSE CASES TOGETHER. 390 00:47:11.218 --> 00:47:14.114 JUSTICE HOFFMAN: I THINK YOU'RE SAYING CLAIM, INJURY, CONDUCT, 391 00:47:14.114 --> 00:47:19.523 IT'S ALL THE SAME IN THE DIAGNOSTIC REVIEW. CHRISTOPHER J. 392 00:47:19.523 --> 00:47:24.094 ROSS: I THINK SO, JUSTICE. I THINK IF YOU LOOK AT THE GENERAL CHARACTERIZATION 393 00:47:24.094 --> 00:47:29.250 OF AN INJURY IN THIS CASE IT'S CLEARLY REPUTATION. I THINK YOU TAKE IT 394 00:47:29.250 --> 00:47:34.875 A STEP FURTHER, IF YOU LOOK AT THE ACTUAL CONDUCT ALLEGED IN THIS CASE IT'S ALSO 395 00:47:34.875 --> 00:47:39.536 CONDUCT ALLEGED BY REPUTATION SO I THINK IT COMES TOGETHER IN THIS CASE WHEN 396 00:47:39.536 --> 00:47:50.263 WE APPLY M O N T E L TO M E G A R I N. IN THE DEFAMATION CASE AS I 397 00:47:50.263 --> 00:47:56.359 SEE IT IT'S REPUTATION AL HARM. IN THIS CASE SPECIFICALLY, THE ONLY THING 398 00:47:56.359 --> 00:48:02.295 REALLY ALLEGED IS REPUTATION AL HARM. THERE IS SOME LANGUAGE IN THE COMPLAINT, 399 00:48:02.295 --> 00:48:07.379 ONE MENTIONED IN PARAGRAPH 47 THAT THE PLAINTIFF HAD SUFFERED EMOTIONAL 400 00:48:07.379 --> 00:48:13.920 DISTRESS, BUT THAT EMOTIONAL DISTRESS FINDS IT'S GENESIS IN THE DEFAMATION AND YOU 401 00:48:13.920 --> 00:48:18.772 DON'T GET TO THAT EMOTIONAL DISTRESS WITHOUT LEANING BACK AND SAYING OKAY, WE 402 00:48:18.772 --> 00:48:24.591 START WITH THE REPUTATION NATURAL HARM. JUSTICE WAINER APTER: 403 00:48:24.591 --> 00:48:29.842 IN YOUR BRIEFING AND JUST NOW I THOUGHT I HEARD AND ARGUMENT WHERE A FALSE LIGHT 404 00:48:29.842 --> 00:48:35.139 CLAIM IS SIMPLY SLAPPING A FALSE LIGHT LABEL ON ALLEGATIONS THAT ARE CLEARLY GROUNDED 405 00:48:35.139 --> 00:48:41.548 IN DEFAMATION BECAUSE THEY ARE ALLEGING INJURY TO REPUTATION THEN THE STATUTE 406 00:48:41.548 --> 00:48:47.655 OF LIMITATIONS SHOULD BE ONE YEAR BECAUSE THAT'S THE STATUTE OF #4RI78 TAGSZ FOR 407 00:48:47.655 --> 00:48:53.045 DEFAMATION AND WE DON'T WANT TO EVEN KURJ PEOPLE TO MISS LABEL THEIR CLAIM IN 408 00:48:53.045 --> 00:48:57.844 ORDER TO AVOID THE ONE-YEAR STATUTE OF LIMITATIONS, BUT I HADN'T UNDERSTOOD 409 00:48:57.844 --> 00:49:03.623 YOU TO BE MAKE AGO A BROADER ARGUMENT OF THERE CAN NEVER POSSIBLY ANY FALSE LIGHT 410 00:49:03.623 --> 00:49:08.853 CLAIM THAT DOES NOT SOUND REPUTATION NATURAL HARM AND DOES NOT SOUND IN 411 00:49:08.853 --> 00:49:13.254 DEFAMATION AND THEREFORE YOU IT WITH WOULD HAVE TO BE A LONGER STATUTE OF LIMITATIONS 412 00:49:13.254 --> 00:49:17.530 AND WE WOULDN'T REACH THAT IN THIS CASE BECAUSE THE COMPLAINT DOES REPEATED 413 00:49:17.530 --> 00:49:24.507 LY ALLEGE REPUTATION AL HARM WHICH IS REALLY THE CRUX OF DEFAMATION AND REALLY 414 00:49:24.507 --> 00:49:29.361 ALLEGES DEFAMATION PER SE UNLESS THE ALLEGATION SAID THAT THE PLAINTIFF WAS 415 00:49:29.361 --> 00:49:34.755 ENGAGED IN CRIMINAL ACTIVITY. SO, IN THEORY, FOR PURPOSES OF THE ARGUMENT 416 00:49:34.755 --> 00:49:40.521 I HAD NOT UNDERSTOOD YOU TO BE MAKING AN ARGUMENT THAT THERE CAN NEVER BE 417 00:49:40.521 --> 00:49:46.680 A CASE THAT DOES NOT SOUND DEFAMATION UNDERSTAND A FALL LIGHT, INSTEAD IN A CASE 418 00:49:46.680 --> 00:49:51.944 LIKE THIS THAT DOES FINDS DEFAMATION THE STATUTE SHOULD BE ONE YEAR. 419 00:49:51.944 --> 00:49:55.749 CHRISTOPHER J. ROSS: I APOLOGIZE, I MAY BE CONFUSING MYSELF. THE ARGUMENT 420 00:49:55.749 --> 00:50:02.141 IS THIS IS SIMPLY A DEFAMATION CLAIM THAT HAS BEEN GIVEN A NEW LABEL TO TRY TO 421 00:50:02.141 --> 00:50:08.948 SUBVERT THE STATUTE OF LIMITATIONS, WHICH WAS EXPLICITLY WARNED AGAINST IN SWAN. 422 00:50:08.948 --> 00:50:13.628 I GUESS IN A BROAD SENSE, JUSTICE, I MAY BE ARGUING THAT IT 423 00:50:13.628 --> 00:50:18.272 MAY NEVER BE THAT SITUATION, BUT I'M SPECIFICALLY TRYING TO LIMIT MY ARGUMENT AND 424 00:50:18.272 --> 00:50:23.362 I APOLOGIZE, TO THIS CASE. THIS IS SIMPLY WE HAVE CLAIM A WE SLAPPED LABEL 425 00:50:23.362 --> 00:50:27.492 B ON IT AND NOW WE'RE TRYING TO MOVE FORWARD WITH IT. 426 00:50:27.492 --> 00:50:31.108 JUSTICE PATTERSON: CAN YOU THINK OF AN EXAMPLE WHERE A FALSE LIGHT CLAIM WOULD BE 427 00:50:31.108 --> 00:50:35.597 INDEPENDENT OF THE ELEMENTS OF DEFAMATION? UNDERSTANDING 428 00:50:35.597 --> 00:50:40.286 THAT IS NOT THIS CASE. CHRISTOPHER J. ROSS: YES, JUSTICE. 429 00:50:40.286 --> 00:50:46.058 'MY UNDERSTANDING, IT'S A LITTLE QUIRKY BECAUSE I BELIEVE IT'S NOT ALL 430 00:50:46.058 --> 00:50:52.343 FALSE LIGHT CLAIMS, BUT ALL DEFAMATION CLAIMS CAN SORT OF BECOME A FALSE LIGHT 431 00:50:52.343 --> 00:50:57.861 CLAIM AND BOTH REQUIRE FALSITY SO I AM NOT SURE JUSTICE PATTERSON, OFF THE 432 00:50:57.861 --> 00:51:02.202 TOP OF MY HEAD IF I CAN COME UP WITH AN EXAMPLE BECAUSE THEY ARE SO INTERTWINED. 433 00:51:02.202 --> 00:51:09.175 I KNOW AMICUS ACTUALLY ADVOCATED TO ELIMINATE THE FALSE LIGHT 434 00:51:09.175 --> 00:51:15.468 CLAIM AND I AM NOT GOING TO ADVANCE AMICUS' POINT. I AM SURE SHE WILL DO A GOOD 435 00:51:15.468 --> 00:51:19.857 JOB WITH THAT. THEY ARE IN EX STRIK CAB BREE TIED TOGETHER 436 00:51:19.857 --> 00:51:26.453 BECAUSE WE REQUIRE A FALSIFYING ELEMENT. AND THE PROSECUTOR WARNED ABOUT 437 00:51:26.453 --> 00:51:30.505 THAT. HE SAYS THERE ARE QUESTIONS THAT STILL REMAIN, WOULD 438 00:51:30.505 --> 00:51:36.030 FALSE LIGHT RISE UP AND SWALLOW UP DEFAMATION AS A WHOLE AND I THINK THAT IS A 439 00:51:36.030 --> 00:51:43.062 GENERAL CONCERN TOVR. IT WAS PUBLISHED IN 1960 OR IN 2025, WE'RE DEALING 440 00:51:43.062 --> 00:51:48.078 WITH THAT CONCERN. I HAD BRIEFED THE ISSUE IN MY RESPONSE TO THE AMICUS BRIEF. 441 00:51:48.078 --> 00:51:55.102 I THINK THERE IS GENUINE CONCERN THAT BY ALLOWING SOMEONE TO SIMPLY REPACKAGE, 442 00:51:55.102 --> 00:51:59.913 WHY WOULDN'T ALL LITIGANTS SIMPLY CHANGE THE LANGUAGE OF THE DEFAMATION CLAIM, 443 00:51:59.913 --> 00:52:04.559 PUT IN THE FALSE LIGHT CLAIM AND NOW WE'RE SORT OF DEALING WITH THE FACT THAT 444 00:52:04.559 --> 00:52:07.850 DEFAMATION MAY BECOME OUR HEAD. JUSTICE PATTERSON: BUT IF 445 00:52:07.850 --> 00:52:14.831 THE STATUTE OF LIMITATIONS IS THE SAME, THEN CASES CAN CONTINUE TO BE DECIDED 446 00:52:14.831 --> 00:52:22.195 AND EX SPOER THE NUANCE OF THOSE DISTINCTIONS WITH REALLY NOBODY BEING PREJUDICED; 447 00:52:22.195 --> 00:52:26.514 AM I CORRECT? CHRISTOPHER J. ROSS: I BELIEVE YOU'RE ABSOLUTELY 448 00:52:26.514 --> 00:52:30.080 CORRECT, JUSTICE PATTERSON. I BELIEVE THE STATUTE OF THE LIMITATIONS 449 00:52:30.080 --> 00:52:34.103 IS THE SAME FOR BOTH CLAIMS THERE IS NO PREJUDICE TO A LITIGANT AND A LITIGANT 450 00:52:34.103 --> 00:52:39.619 COULD STILL THEN BRING BOTH CLAIMS AS OFTENTIMES BRING A MULTITUDE OF CLAIMS THAT 451 00:52:39.619 --> 00:52:45.396 MAY BE INTERTWINED OR INTERRELATED, HOWEVER, IT BECOMES, A MORE UNIFORM 452 00:52:45.396 --> 00:52:51.080 STATUTE OF LIMITATIONS, IT PROVIDES MORE CLARITY TO A LITIGANT AND IT FORECLOSES 453 00:52:51.080 --> 00:52:57.100 BY HOLDING A STATUTE OF LIMITATIONS, FORECLOSES ON THE SPIRIT OF YOU'RE 454 00:52:57.100 --> 00:53:00.466 SIMPLY GOING TO REPACKAGE THE CLAIM. JUSTICE WAINER APTER: JUST 455 00:53:00.466 --> 00:53:05.169 TO CLARIFY THE ONLY REASON WE'RE TALKING ABOUT ALL OF THIS AT ALL IS FALSE 456 00:53:05.169 --> 00:53:10.703 LIGHT IS A COMMON LAW CLAIM. IF THE LEGISLATURE WANTED TO INFORMED FIE SOME THING 457 00:53:10.703 --> 00:53:16.622 FOR FALSE LIGHT IT OF COURSE COULD DO SO. AND THAT'S WHY WE'RE TRYING TO FIGURE 458 00:53:16.622 --> 00:53:22.407 OUT WHAT THE BEST STATUTE OF LIMITATIONS IS TO APPLY WHETHER IT'S A COMMON LAW 459 00:53:22.407 --> 00:53:28.305 CLAIM WHERE THEY HAVE NOT SPOKEN ABOUT THE CORRECT. CHRISTOPHER J. 460 00:53:28.305 --> 00:53:33.957 ROSS: I BELIEVE SO, IN FURTHER TO THE POINT I THINK PART OF THE CONFUSION COMES 461 00:53:33.957 --> 00:53:40.167 BECAUSE INVASION OF PRIVACY IS ALMOST AN UMBRELLA CLAIM OF FOUR DISTINCT 462 00:53:40.167 --> 00:53:45.487 CLAIMS THAT FALL UNDERNEATH THAT UMBRELLA. MAYBE THEY ARE PART OF THE SAME CATEGORY, 463 00:53:45.487 --> 00:53:50.381 BUT THEY ARE REALLY, I BELIEVE, UNRELATED CLAIMS BECAUSE IF WE LOOK AT THE 464 00:53:50.381 --> 00:53:55.204 PROOFS THAT NEED TO BE ADVANCED I THINK THE GENERAL THEME IS WE WOULD LIKE PEOPLE 465 00:53:55.204 --> 00:54:01.731 TO BE LEFT ALONE AND IN PRIVATE BUT THE FOUR CLAIMS ARE UNRELATED SO I THINK 466 00:54:01.731 --> 00:54:07.220 IT'S A STRUGGLE TO FIGURE OUT WHERE THEY FIT. CHIEF JUSTICE RABNER: 467 00:54:07.220 --> 00:54:11.794 OTHER QUESTIONS ANYONE? MR. ROSS IS THERE ANYTHING YOU WOULD 468 00:54:11.794 --> 00:54:14.506 LIKE TO ADD TO YOUR ARGUMENT. CHRISTOPHER J. ROSS: NO, YOUR HONOR, 469 00:54:14.506 --> 00:54:18.730 I WOULD JUST LIKE TO THANK THE COURT FOR THEIR TIME. THE COURT: 470 00:54:18.730 --> 00:54:23.397 THANK YOU, WE WILL HEAR NEXT FROM GRAND JURY GRIFFIN. C.J. 471 00:54:23.397 --> 00:54:33.578 GRIFFIN: MAY IT PLEASE THE COURT. I SMIETD AMICUS BRIEF, ADVERSE PARTY, 472 00:54:33.578 --> 00:54:39.676 I AM FRANKLY KIND OF NOT SURE WHY WE'RE HERE ANYMORE BECAUSE THE CERTIFIED 473 00:54:39.676 --> 00:54:50.306 QUESTION IS ABOUT WHETHER SWAN APPLIES AN MR. KOBER SON P CONCEDED THAT IT DOES 474 00:54:50.306 --> 00:54:54.776 APPLY WHERE THE CLAIM IS DEFAMATION AND THERE IS NO NEED FOR A MEDIAN IN THIS 475 00:54:54.776 --> 00:55:00.539 CASE BECAUSE WHAT HE HAS PLEADED IS DEFAMATION PER SE. THAT'S 476 00:55:00.539 --> 00:55:07.392 SLANDER PER SE. AND SO THERE IS NO NEED FOR A REMAND THAT WOULD BE A CONDITIONAL 477 00:55:07.392 --> 00:55:11.721 PROCEDURES THAT A COURT DEFENDANT IN THIS CASE WOULD HAVE TO PAY TO DEFEND 478 00:55:11.721 --> 00:55:16.958 AGAINST SO I'M NOT QUITE SURE WHY WE'RE HERE. MR. KOBER SEEMS TO BE 479 00:55:16.958 --> 00:55:21.315 ADVOCATING FOR SOMETHING COMPLETELY OUTSIDE THE FACTS OF THIS CASE WHICH 480 00:55:21.315 --> 00:55:28.592 WOULD BE AN ADVISORY OPINION ABOUT ANOTHER CONDUCT CASE, A FALSE LIGHT CLAIM AND 481 00:55:28.592 --> 00:55:33.698 IN THAT REGARD ESSENTIALLY WHAT HE IS ASKING IS THE COURT TO SAY WELL, OKAY, YOU 482 00:55:33.698 --> 00:55:39.200 CAN INVADE THE RULES FOR DEFAMATION WITHOUT PLEADING SPECIFICITY AND A DISCOVERY 483 00:55:39.200 --> 00:55:44.739 RULE AND YOU CAN HAVE AN EXTRA YEAR TO BE ABLE TO BRING ANOTHER H ANOTHER FALSE 484 00:55:44.739 --> 00:55:49.037 LIGHT CLAIM. THAT CAN'T BE THE REASON WHY THOSE RULES ARE 485 00:55:49.037 --> 00:55:53.425 IN PLACE FOR DEFAMATION BECAUSE IT INVOLVES SPEECH, YOU HAVE A RIGHT TO FREE 486 00:55:53.425 --> 00:56:00.897 SPEECH AND SO THE ABILITY TO PUNISH SPEECH IS VERY NARROW SO EXACTLY WHAT HE IS 487 00:56:00.897 --> 00:56:05.987 ASKING FOR IN THIS CASE IS THE ABILITY TO EVADE ALL DEFAMATION PROTECTIONS 488 00:56:05.987 --> 00:56:13.424 VIA ANOTHER ACTION, FALSE LIGHT. I THINK MR. ROSS DID A VERY GOOD 489 00:56:13.424 --> 00:56:18.843 JOB RESPONDING TO MR. KOBER'S ARGUMENT AND EXPLAIN WHY WE SHOULD PLEA VEIL 490 00:56:18.843 --> 00:56:24.534 IN THIS CASE SO I WON'T EXPAND UPON THAT. I WILL SAY JUSTICE 491 00:56:24.534 --> 00:56:28.703 PATTERSON, IN TERMS OF YOUR QUESTION ABOUT EXAMPLES, IT IS VERY DIFFICULT TO 492 00:56:28.703 --> 00:56:33.626 THINK OF ANY EXAMPLE THAT WOULD BE FALSE LIGHT THAT WOULD NOT ALSO BE DEFAMATION. 493 00:56:33.626 --> 00:56:40.902 WHICH IS WHY FLORIDA AND TEXAS AND COLORADO AND ABOUT A DOZEN 494 00:56:40.902 --> 00:56:47.635 STATES HAVE DECIDED THAT THEY ARE GOING TO REJECT THE FALSE LIGHT CLAIM ALTOGETHER 495 00:56:47.635 --> 00:56:52.553 BECAUSE THEY CAN'T RELATE. THEY'VE LOOKED AT ALL THE CASE LAW IN THEIR 496 00:56:52.553 --> 00:56:57.127 JURISDICTIONS AND CAN'T FIND A CASE WHERE IT WAS FALSE LIGHT BUT NOT DEFAMATION 497 00:56:57.127 --> 00:57:03.568 SO IT WASN'T WORTH KEEPING THIS THAT RESULTS IN ADDITIONAL DEFENSE WORK FOR 498 00:57:03.568 --> 00:57:11.222 THE DEFENDANT IN THE CASES, CONFUSES COURTS AND IS ABUSED BY PLAINTIFFS. 499 00:57:11.222 --> 00:57:17.143 OF COURSE WE ASK THE COURT TO BE BLANK THIS WEEK AS WELL. YOU 500 00:57:17.143 --> 00:57:23.955 KNOW, I DID DO A LOT OF WORK ON MY RAM MEEK CUSS BRIEF TO TRY TO BE HELPFUL TO THE 501 00:57:23.955 --> 00:57:30.012 COURT SO IT WOULD BE A BUMMER OF THE COURT IF THIS COURT DISMISSED THIS 502 00:57:30.012 --> 00:57:35.385 CASE BUT IT WOULD BE A GOOD OUTCOME FOR THE DEFENDANT BECAUSE THIS IS A FRIVOLOUS 503 00:57:35.385 --> 00:57:41.657 ACTION. THE COURT TAKING THIS MAERLT FOR CERTAIN MIGHT MAKE 504 00:57:41.657 --> 00:57:48.456 IT THANKFULLY WE NOW HAVE A STATUTE IN PLACE THAT DOESN'T APPLY TO THIS CASE BUT 505 00:57:48.456 --> 00:57:55.200 WOULD PROTECT FUTURE SUCH ACTIONS, BUT I DO THINK THAT, YOU KNOW, IT WOULD BE 506 00:57:55.200 --> 00:57:58.855 APPROPRIATE FOR THE COURT TO TAKE A LOOK AT THIS CASE AND IT HAS HAPPENED 507 00:57:58.855 --> 00:58:04.716 SO MANY STIEMS, THE UNPUBLISHED OPINION, IN TLSH NUMEROUS UNPUBLISHED APPELLATE 508 00:58:04.716 --> 00:58:09.766 DIVISION DECISIONS WHERE THE COURT HAS REJECTED, HAS REJENGD THE ADDITIONAL 509 00:58:09.766 --> 00:58:19.002 CLAIMS WHERE R WHEN THEY ARE TACKED ONTO A CLAIM, AND WHAT THEY ARE DOING IS THEY 510 00:58:19.002 --> 00:58:25.061 HAVE SAID IS WELL, ALL OF THESE CASES EXPOSE OF DEFAMATION CLAIM AND 511 00:58:25.061 --> 00:58:29.829 ADDITIONALLY SAID WELL, BECAUSE THE DEFAMATION CLAIM FAILS, SO DO ALL THE OTHER 512 00:58:29.829 --> 00:58:35.708 CLAIMS AND THIS COURT HAS DONE THAT IN D E C K E R AND BLANK, THE APPELLATE 513 00:58:35.708 --> 00:58:41.752 DIVISION HAS DONE IT IN MANY OTHER UNPUBLISHED CASES AND NOW, HEY, LET'S JUST NOT 514 00:58:41.752 --> 00:58:46.485 PLEAD THE DEFAMATION CLAIM AND ONLY PLEAD THE TORTS TO TRY TO AVOID THOSE RULES 515 00:58:46.485 --> 00:58:51.509 SO IF THIS COURT WERE TO DO AWAY WITH THIS COURT AS MANY OTHER STATES HAVE 516 00:58:51.509 --> 00:58:58.341 DONE IT WOULD TAKE CARE OF THAT ABUSE. IN TERMS OF PREJUDICE, IF YOU'RE 517 00:58:58.341 --> 00:59:02.310 CORRECT THAT IT'S NOT A SIGNIFICANT PREJUDICE, BUT IT DOES REQUIRE 518 00:59:02.310 --> 00:59:09.202 ADDITIONAL DEFENSE WORK. YOU HAVE TO BRIEF IT. YOU HAVE TO EXPLAIN IT TO THE TRIAL 519 00:59:09.202 --> 00:59:15.363 COURT. IT RAISES SOME CONFUSION AND THAT SORT OF THING AND IF THE COURT WERE 520 00:59:15.363 --> 00:59:22.694 TO REJECT THE COMMON LAW, THE COURT COULD ALSO SET FORTH THE APPROPRIATE STATUTE 521 00:59:22.694 --> 00:59:32.051 OF LIMITATIONS AS MR. ROSS ALLUDED TO. WE QUESTION WHETHER 522 00:59:32.051 --> 00:59:37.109 EXACTLY WHAT HAGS HAPPENED IN THIS CASE WOULD HAPPEN SO I SORT OF BELIEVE MY 523 00:59:37.109 --> 00:59:44.443 ARGUMENT THERE AND WOULD BE HAPPY TO ANXIOUS ANY QUESTIONS, BUT. 524 00:59:44.443 --> 00:59:48.709 CHIEF JUSTICE RABNER: ONE QUESTION, COUNSEL. YOU PHRASED A VERY THOUGHTFUL 525 00:59:48.709 --> 00:59:53.308 ARGUMENT IN YOUR BRIEF, BUT THE WAY IN WHICH THIS CASE WAS PROCEEDING THE 526 00:59:53.308 --> 00:59:58.482 ARGUMENT WAS FIRST RAISED BY ONE AMICUS AND WASN'T RAISED BEFORE THIS POINT AND 527 00:59:58.482 --> 01:00:04.162 OTHER AMICI DIDN'T HAVE THE OPPORTUNITY TO WEIGH IN THIS ARGUMENT BECAUSE IT DIDN'T 528 01:00:04.162 --> 01:00:08.722 GET BROUGHT OUT AT THE OUTSET WOULDN'T IT MAKE MORE SENSE FOR A LITIGATING 529 01:00:08.722 --> 01:00:16.481 CASE WHERE THE ISSUE IS FRONT AN CENTER BEFORE GIVING AWAY FALSE LIGHT. 530 01:00:16.481 --> 01:00:19.208 C.J. GRIFFIN: I THINK THAT IS A SENSIBLE APPROACH. I THINK A SENSIBLE 531 01:00:19.208 --> 01:00:23.589 APPROACH IN LIGHT OF THE SIGNIFICANT CHANGE HERE MIGHT BE THE COURT NOT ISSUING 532 01:00:23.589 --> 01:00:29.906 AN OPINION AT ALL. LEAVE SWAN IN PLACE BECAUSE IT HAS WORKED FOR 15 YEARS. 533 01:00:29.906 --> 01:00:36.375 A LOT OF COURTS HAVE BEEN ABLE TO APPLY IT AND IF AT SOME POINT WE GET HERE AGAIN 534 01:00:36.375 --> 01:00:41.363 THAT COULD BE AN AVENUE, BUT, OF COURSE, IT IS VERY UNLIKELY THAT A CASE 535 01:00:41.363 --> 01:00:48.943 GETS BLANK, SO WE TOOK THE OPPORTUNITY TO BRING TO THE COURT WHY OUR JURISDICTION 536 01:00:48.943 --> 01:00:53.381 TO THIS COURT ALTOGETHER. CHIEF JUSTICE RABNER: UNDERSTOOD. 537 01:00:53.381 --> 01:00:59.582 ANY QUESTIONS ANYONE? THANK YOU, COUNSEL. WE WILL 538 01:00:59.582 --> 01:01:02.582 TAKE THE MATTER UNDER ADVISEMENT.