in two thousand and seven biomet learned that the u s department of justice and the f c c were investigating its compliance with the federal and with the foreign corrupt practices act biomet sells medical devices around the world and biomet had violated the p a and were as countries so biomet knew that the best outcome from this investigation from its standpoint would be to negotiate a deferred prosecution agreement with the d o j in order to avoid a criminal conviction and minimize the penalty they knew that in order to achieve that result they would be required to sever ties with the individuals and entities who were responsible for breaking the law no one of the countries in which biomet had been violating the  sent a letter and said we are terminating our relationship with you the person responded by saying well if you do that you cannot sell your products at all in our in brazil because we hold the necessary government registrations so which was they could cut ties with proceeds in the goetia if their d p a but that would require them to stop selling in brazil and lose that revenue for a period of several years while they got their own registration but they didn't want to do other confederates who would have these new corporations which would be the a sensible distributors and they would use frozen teases registrations up to this point mr yates had nothing to do with any of this he was in argentina managing biome its operations there but he had been instrumental in only there i thought he was the south american mantra no this was in two thousand and nine he was changed from being the managing director of argentina to being in charge of all of south america and the reason for that was that he was instrumental in reporting and stopping f c p a violations in argentina and biomet knew that putting him in charge of south america would add credibility to their arguments to d o j that they were complying with the law so they brought him in but they had they were walking a fine line between wanting d o j to believe they had severed ties with proces but having to do business with proceeds in fact they signed a new contract with prostitutes and paid the millions of dollars to continue to be involved in  operations so they brought mr yates in and told him to deal with us and they gave him instructions and there's a hot dispute over what the content of those instructions were and what the whether or not mr gates f part of the dispute exists because there was no writing they didn't put despite the importance of this issue they didn't put it in writing so they brought mr gates in and for three years he followed those instructions which included dealing  two thousand and twelve however biomet completed negotiations for their deferred prosecution agreement in which they represented that they had terminated person tese they did not reveal in the deferred prosecution agreement that although they had terminated their prior business person takes that was clearly not accurate because i only had entered into a new contract across a ts which require proceeds to continue to play a role but that's what they said in the deferred prosecution  which they did and that's what brings us here today biomet published on numerous occasions the statement saying that they had conducted a quote unquote corruption related investigation in brazil as a result of that investigation mr yates had been suspended and biomed had determined that he was a well significant and unacceptable risk to the company's efforts to comply with anti corruption law the district court held  matter of law that this was not defamatory because the district courts that the notion that he was a compliance risk is an opinion that cannot be proven falls now it is clear joint appendix ph to thirty one dollars so the company was clearly saying not simply that they had determined mr gates was a risk but that it had made that determination by conducting an investigation which revealed misconduct by mr gates that resulted in his suspension proving by disproving implied facts and it says the provably false connotation test of milk a bitch makes allegedly implied statements irrelevant now as i said that is simply a flat out misreading of milk which and i don't think it's a fair reading of this milk of it clearly says that the dispositive question is whether a reasonable fact finder could conclude from the quote unquote opinion that it was based on facts that could be proven true or false and the district court found that the statement did exactly that and in ruling on the motion to dismiss the district court said a reasonable recipient of the email much criminal activities especially if they were aware of the investigation the deferred prosecution agreement and the penalty and then ruling on the motion for summary judgment the district court said the fact that he misconduct and the fact that he is termed a significant and unacceptable risk suggests his participation in criminal activity here honors that finding alone is sufficient to make summary judgment improper just now the district court also ruled that a granted summary judgment on the issue of malice holding that the statement was protected by the privileges of common interest and public interest privileges now those privileges to be applicable st require the biome that prove that the statements were made in good faith and those privileges are may also be overcome yates upon proof that biomed acted with ill will or made them without grounds for belief in their truth and as the court held in williams for a start and as the district court here said that means the privilege doesn't apply if the statement was obviously not correct and biomet knew at the time it told the monitor that mr gates had ignored a prohibition on any business with m but that statement was not true so that could not have been made in good faith now the district court said even a dispute over whether biomet knew that that was true or not cannot overcome the power of the monitor to motivate biomet to act in any way including publication of the r p l making such disputes immaterial now you're honest what that means in effect is that even if biomet knew that what it was saying was false and even if biomet lied to the monitor and told the monitor something that it knew wasn't false the fact that the monitor then told biomet to publish that statement absolves bya from its bad  monitor required zimmer biomet to distribute to its employees and its business partners in conjunction with a deferred prosecution agreement in mr gates opinion he does not belong on that list this r p with mr yates opinion that he is not a compliance risk the undisputed facts in this case however demonstrate that he does not have a defamation claim the district court decided correctly as a matter of latin america he had oversight for latin america so as a wharton graduate and had received no less than ten s e p a trainings he was responsible for s e p a compliance in south america before the court the yates was aware that sergio go into and had committed unlawful actions of bribing doctors as a mate at least as of may two thousand and eight after may two thousand and eight glendale and distributor were terminated and they were prohibited directly or indirectly from importing story or promoting distributing aren't anyway marketing biomet products and that was reflected in two thousand  you the record shows however that mr gates his actions were at the center of the two thousand and seventeen deferred prosecution agreement statement of facts that the government gave to them or biomet and that paida monetary penalty of seventeen million dollars to resolve the criminal charges brought by the department of justice probably brought by the united states yes united stated yesterday i'd like to turn to the qualified p claim fails because the restricted party list publication is protected by the doctrine of both the qualified privilege of common interest and the qualified privilege of public interest both privileges negate malice a required element of the defamation claim the qualified privilege of common interest applies to communications made in good faith on any subject matter in which the party making the communication has an interest or legal moral or social duty and if made to a person having a corresponding interest or duty it is under the case law apply to a wide range of relationships including between employees and employers as well as business partners there are numerous reasons why the common interest privilege applies in this employ subsidiaries and company partners for the limited purpose of reducing risk of future federal corrupt practices act violations zoomer by a map and all recipients of the restricted parties list had a legal and moral duty to observe regulatory compliance and avoid corruption in the future for similar reasons the district court correctly determined that the restricted parties list was protected by the qualified privilege of public interest because it was shows that the monitor appoint it would not have approved the restricted party's list if mr yates's name had not been placed on it a company needs to be able to communicate with its business partners to avoid violating the law without fear of being sued for communications failure to mit to permit the qualified privilege in this case in this context could open the floodgates of litigation to any and all entities that find themselves on a restricted party's list and who believe that they may escape regulatory consequences by threatening litigation against a company that is making good faith efforts to take appropriately tailored steps to comply with its legal obligations a a pointed out the st year after the religious establishment the burden shifts over to the defendant to determine whether the privilege has been abused in the district court found that it had not been abused in order to show that  must show that the communicator was motivated by ill will in making the statement there was excessive publication of the defamatory statements and the statement was made without belief or grounds for belief in its truth in this case the defendant cannot meet that burden did not meet that burden there is no evidence of ill will on appeal the defendant does not argue excessive publication but grounds its arguments primarily and without belief or grounds for belief but the case  that mistake even if that was the mistaken belief which it was not that it is still protected by the common interest because there just needs to be a belief or grounds for belief in this case mr yates peripheral facts that litigation a peripheral fa cannot establish its him or biomet lacked belief in its statements and therefore both of these privileges should apply to the statements that were made in the restricted parties list there's an even more fundamental reason the mystery i a defamation claim fails in this case and that is he's unable to adequately show the defamatory statement in their strictest party's list it stated that mr gates mr yates had been suspended in connection with a corruption related investigation by a result that was a fact that is a fact in his deposition that mr gates says is true he admits it's true and that biomed then had stated that it identified entities that pose a significant and unacceptable compliance risks mr yates admitted his deposition that in fact that entire communication did not contain any false statements and that he understood in his deposition he testified that he understood that zimmer biomet had the opinion that he was a compliance risk to the company the restricted parties list which describes mr gates as a compliance risk cannot serve as a fourteen and it still is today the company is still under a monitor show there are no facts that mr yates could prove before a jury now or a trial that would falsify zimmer biomet assessment and opinion that a clear compliance risk in fact the united states government and zimmer biomet both independently came to that conclusion and the reason for that is that he was at the very epicenter of the conduct for risk to the company i don't know whether actually his actions violated express company instructions but the alleged family tree statement in this case does not state that mr yates violated express instruction or that he was solely responsible for violations rather the restricted parties list stated that zimmer biomet considered yates to be a compliance risk so stepping back if under the ms harry truman argued that there are no facts that could be proven that would prove that feith biomed opinion that mr yates was a risk falls and that  i believe is true because to say someone is a risk particular to say someone is their significant other acceptable risk obviously does convey an opinion of people have different views about risk people have different views about what is significant what's up to the point though significant enough except it will risk it said we conducted an investigation it corruption related investigation and as a result of that investigation we suspended mr yates so right there it sank mr gates committed misconduct obviously he would not have been suspended if he had and as a result of that investigation and that suspension we have determined that he is a significant on acceptable risk so this is clearly implying facts that can be proven the ms harrington argued that the communications didn't contain any false statements and it is true that i am a conductor investigation it is true that mr gates was suspended and it is true that  an investigation and suspended him because he engaged in misconduct and he did not engage in this kind of that is the central factual dispute in this case carrington argued the question is not whether he  he violated any instructions because he knew that mr the lindo and person thief had bribed doctors well yes he did and so did the company and the company continued to do business with mr kalinda and the company through m superior the president violate international and through the company assigned in house counsel told him this is how you can behave this is what you can do with mr gold and he followed those instructions to the money and  and that's not true and the reason they told d o j that and didn't tell them what they're arguing now is because they want to d o j to believe that they had severed ties and that mr yates had violated that and that's not at all what the prohibition on dealing with the lindo with not dealing with the window is not a violation of the f c p the reason that was problematic was because biomet had led the us government to believe that it had cut ties with glee and the violation that the us government was a violation by the company and its books and records was not mr gates the last thing i want to address is the privilege the monitor said well who's responsible for this and biomed appointed a committee and they said we're going to look at this and we're going to tell you who's responsible and they said why it's a one hundred yes because we told him not to have anything to do with mr glinda and he went ahead and did it anyway and that's not true and now by all with argues that not applying a privilege here could open the floodgates to anybody who wants to litigat