defendant the bank primarily defense against this claim by saying that the claim is excluded under subsection of the regulation because it's a claim for wrongful this one and we have t nation of the failure to make money available and a violation of the f a a what subsequently ensued was that electronic transfers were just disallowed checks were dishonored deposits were not allowed to be made and the banks customer little donkey did not have access to its account but those are the effects of the failure to make funds available and not the primary basis  the dollar amount for the legal fees necessary to correct the mistake was about three thousand dollars is that much it is it comes to an attorney no it's a case where the attorney fees from the effort to fix it are damages and whatever the government just of that mr wilson first fight in his deposition that they have lost at least two customers if you think of as a result of this and i believe if there were a trial in this case we could prove that there were additional business i'm having some trouble i mean it seems unfortunate what happened here but i'm having trouble thinking it into the statutory framework first of all in terms of say the time to honor it to be made available and that's from the date of deposit and the bank is not asserted that it's a gift and i'm sure they would have if it was a differen i'd also like to point out that the banks hypothetical if respondents grief page fourteen is incorrect the bank says that our proposed interpretation of the regulation was rendered meaningless because it would only apply when the account balance with zero and on i don't recall that argument in the briefs i get my understanding of their argument was simply that they the there was no violation of the act software had never tripped on this account even though they've been using it for eight years you can hear the thirteen year history and nothing changed and all of a sudden they're responding to a red flag from the software question is  that a reasonable basis for that the action if they took so i don't think i'm allowed to discuss it at oral argument and we can i'll tell you what if we read all of those that we receive we'll take a look at it if we think that anything further from either side is required let the parties now oral argument unless the court has questions about got alleged two kinds of statements that were defamatory in this case one is the group of statements regarding the investigation and that there was an investigation for check your regular activity the and i believe those two things have those two categories of statements have to be analyzed separately with regard to the statements on the investigation the reason and and the responders face a number of cases in which the statement that there is an investigation has not been heard has been told not to be defamatory but the reason these this case is different from those cases is that in this case the statement about the investigation was made by the bank itself talking about its own investigation and in the context of checks found saying wire transfers being refused a freeze on the account the statement that we're investigating this customer because we suspect check writing suggests that there are undisclosed facts which go beyond the mere fact of an investigation and that the fake actually believes there is check counting check and irregular activity going on so that takes it outside of those cases for newspapers are reporting on  investigation secondly in the category of the statements made on the return date and they are both directly and impl defamatory the returned items not sufficient funds for account closed and collected fine not only are those statements directly defamatory but they also imply that the family for meaning that little donkey and steam because unionism is mismanaging its business and so even if the court chooses not to find that the statements about the investigation are defamatory those direct statements made on the return finally the bank argues that all of these statements are privileged but the privilege here is only a qualified privilege which can be lost if it's of used or the statements are made with reckless disregard for the truth and the correct standard here is whether or not the statements were made with a reckless disregard for their truth or falsity and there is the case that in our reply brief at page nine twelve her ca which holds that a conditional privilege is to be used or there's a question of fact as to whether or not it's used when a defendant had conducted an investigation and there was evidence that the investigation was not reasonable and our situation is just like that that's what your case the defamatory statement was made by an expert end of report and the court said that their head but that was not privileged if the report was not the result of a fair and impartial investigation or if there were not reasonable grounds for the experts believe and in this case we have evidence that the banks investigation was not reasonable and that there were no reasonable grounds for the action that the finding in fact the district court actually held in connection with the wrongful dishonor claim at the end of its opinion that the red flag and the court also found that  the bank had not reviewed its own records of the accounts history and it feel to consult with counsel and yet for some reason the court did not apply those findings to turning to the consumer protection and the baker reviews that its conduct lacked capacity to deceive the public and also that there is no evidence of public interest in fact but here the deceptive calm conduct is the bank's failure to make funds available to its own customers when it has represented to them that it is holding the funds for their benefit transaction it doesn't have the capacity to a larger public inference we don't have any evidence of some kind of pattern or practice here doing i think we do we have the bank statement that these are the procedures and policies that it always had followed in the past and that it was going to adhere to them because it didn't see anything wrong with what  the funds have actually cleared the other bank but they don't track and they're not going to track and so forth so the same thing can happen to another customer in a similar circumstance and i don't think it matters any rarely understand your  framework and that's exactly right before i addressed the claims on which little donkey is appealing i would like to address one client that isn't before the court this time and that was the whole donkey's wrongful dishonor claim under washington state law which survives summary judgment and trial court determined that whether the banks are dishonest of these checks was reasonable it was an issue of fact that needed to go to trial and therefore left that claim in th case little donkey then voluntarily just messed with prejudice that claim so that it could appeal its other claims so as much ferguson pointed out as well there are no actual damages here little donkey is suing been entitled to recover all actual damages including consequential damages it elected not to do that and dismissed that claim and therefore we are here on the additional claims which the trial court correctly dismissed i think is there where there  well that's very true with respect to the that's different from the state and federal statutory ever the federal statute is very clear in the regulations which specifically exclude wrongful dishonor claims for wrongful dishonor checks by a saying is they couldn't have recovered under the defamation aspect which they are still pursuing in federal court they they couldn't of recovered assumes damages which they're claiming they're entitled to under dishonest traditionally regulated by the states it was regularly voted stick this case the state regulation specifically prohibits the actions which little donkey claims occurred in this case and little duckie could have had around with it instead has chosen to pursue three independent reasons and we believe that each of these grounds was sufficient for dismissing that crime first of all the alleged statements were true the bank was conducting an investigation and little donkey conceded th s in its thirty six deposition which is part of the record as to other circuits have addressed this issue whether a statement that an investigation is incorrect occurring infers that the underlying conduct also occurred and both circuits have rejected that claim the seventh circuit rejected it in the global relief foundation recent new york times case decided last year and the fourth circuit rejected that claim in the ates counseling and testing centers case decided in  statements requalify the privileged also in the theater versus bill the school district case and also watching court of appeals case a school principal told a parent about allegations that have been made again the teacher and the court ruled that those parties also have a common interest in the subject matter and they're there for those statements were privileged the same is true here certainly wells fargo key bank and u s bank all had an interest if there was a  check system which monitors these types of counts also had an interest in that information and certainly the recipients of the checks had an interest in knowing that the account of making being close to the chaps were no good there was a common interest in these statements to simming they were made of defamation law in washington if mr carville mentioned the supplemental authority that she faxed to us a couple of days ago if the court is going to consider that defamation prime similarly with respect to the consumer harm on that point it just seems to me that the possibility that somebody would red flag you and they're going to treat you differently than it would raise the fact it's the gametes it's when the evidence in the record is that the person who made those statements was a long time vendor of little donkey had a long time relationship and was a little donkey explained what had occurred his concerns were satisfied and mr cobb also said in his argument that there is evidence in the record that little doggy lost to customers that that evidence is nowhere in the record there is no evidence at all dock it lost any vendors or any business duties to its customers other than those duties which are stated in the account agreement which governs the relationship between the bank and its customers i'm not aware of any other is no hoodoo theory duty so i don't know if there is i'm not aware of it why bears on the claims raised by little donkey here i and i think it's important to look at the facts of this case as well what actually happened and that is over a ten day period this is science series of checks which totaled exactly ninety nine thousand dollars against those off these wells fargo account and the posture of those in the little donkeys us back account simultaneously wrote forty two thousand dollars worth of checks is right now insufficient and not sufficient perms the testimony of the bank witnesses in their depositions was that in these types of situations the question is who gets left holding the bag who is going to take  loss between wells fargo u s bank and few banks here than the fact the funds aren't there and the safest route to take is to close the account to protect the bank's interest and you're correct the bank was protecting its own interest in closing the account but before it did that not only did the account analyst diameter know evaluate the facts her boss talk prego analyzed the facts as did his boss the head of this entire group and then they consulted with the branch manager who may have more knowledge about this particular account and she consulted with her boss the regional match so five different bank employees were involved in making this decision after the software  to me is that i doubt this was the first time this ever have occurred because it seemed like it was the standard practice the way they were doing here with the  staff one is what was there a pattern with little talking specifically the other is the pattern that occurs with other customers with respectable baki there's no evidence in the record as to what its patents were in previous years other than mr statement in his why they wouldn't look into that the branch manager wasn't aware of the reasons why this would be done and the people analyze the account the trauma that it was a risk they couldn't see any rationale for why a corporation would write checks to its health between future in this way or even that any other bank customers in little donkeys at the killer circumstances require doing business this way what were the wire transfer speed those cases there were wire transfers i both believe little at the same bank that it's factoring company had an account so that it wouldn't occur wire transfer fees from that back but there's no evidence of what those fees were that were avoided just the fact that that was little donkey suspicious to the bank analyst these checks for exactly six thousand exactly fourteen thousand being written from modern business transportation which is a little duckies doing business as name she modern business transportation it's not the type of check that one would normally think it's an ordinary type of business check counsel repeatedly makes the statement that little guy he doesn't have any actual damages except perhaps these fees forty dollars here and there and so forth i don't understand why counsel hasn't yet realize that damages can include things like injury to reputation and loss of business that is actual damage and there's plenty of testimony from david's food beverly screw and from dean wilson in the record those of the three principles of the business that they did stuff for those two kinds of loss the amount really isn't critical for the analysis here and we shouldn't have to talk about litigation tactics i don't think in this setting but counsel brought it up and i want to  the appellate level before you have to go through a trial there's nothing sinister about why we would dismiss that wrongful dishonor claim and it certainly doesn't suggest that the only reason little donkey the suing the bank is to generate more recheck the brief by the way your honor and there is no argument that i could find the funds were made available within that time frame so if you've been looking back at the record the earlier records that that argument  turning to the defamation claim the assertion of a qualified privilege requires that all of those who received the defamatory statement have a mutual interest with the bank of some kind and there's been no explanation yet the recipients of those returned items as usual interest with the bank that would give the bank a qualified privilege furthermore there's absolutely no authority for the notion that was talk about the ninety ninety nine thousand dollars in checks deposited versus forty two thousand dollars of checks written out of the little donkey accounting that triggered some concern but the affidavit of beverly s and the supporting materials that were submitted in response to the motion for summary judgment showed that there were enough collected funds already in the us fake account to cover those forty two thousand dollars of checks more than  without the wells fargo deposit the recent one and so the basic concern simply wasn't justified for that reason well there was no threat of loss to the bank money into wells fargo wells fargo money was then transferred into u s banks account and then a little donkey faith various obligations including the obligations to modern business service system which is not little donkey all