proceed good morning or honors counsel my name is eric macy i am counsel for the defendant opponent in this case north american corporation of illinois which i will refer to as a north american during the case  the basic facts which gave rise to our being here today is that our client received credible evidence of a former employee attempting to solicit one of its clients in violation of a non competition clause the corporation called it corporate counsel for many years asked what to do from a prospective law firm the counsel suggested to use a private investigator the investigator was a licensed only investigator the investigator called our client and requested certain information we provided that information to the investigator which was lawful to provide as held by the circuit court social security number birthdate telephone records and the circuit court held at summary judgment it was lawful to provide that and the suit that was never and that was not appealed the investigator also obtained telephone records what he did is he had a menu literally a piece of paper enter into evidence and used an internet service called discover a can checked off what he wanted fax it to the service and the service returned back to him him written in telephone information he in turn the investigator literally just fax those same materials to the client and the client did use those materials in a few instances whereby it would check the phone numbers through were reversed directory like google to see if those were phone numbers of either competitors or clients of the defense the plaintiff warns about this over the case was already pending for i'm really unclear as to what was the cause of action here can you tell me what the cause of action was that was led and what the omens are sure the cause of action was intrusion upon seclu has that been recognized in the state it has been recognized by the first district appellate court and for that reason we didn't challenge it as a cause of action at that time he didn't he tell us what the elements are  elements of the tort are an unauthorized intentional intrusion or prying into the plaintiff seclusion the second is that the intrusion is highly offensive or highly objectionable to a reasonable person the third is that the matter upon which the intrusion is a kurd or the intrusion occurs is private and lastly an injury i think the suit you are this court discussed it without you held at that point time and what you did is you followed two supreme court decisions b m w vs poor from one thousand nine hundred sixty state farm versus campbell of two thousand and three and consistent with that you said there were three guideposts that we're going to look at for the fourteenth amendment application for purposes of punitive damages and i want to go over each of those guideposts for this case the first was the degree of reprehensibly the conduct which according to gore says perhaps that's the most important of the of the invasion that you should look at and you consider five factors in a low you said you consider five factors the first is whether the harmless calls was physical as opposed to economic and in this case just so the court knows the trial court expressly found in her remit of her and we agree that all factors all due process actors she found were de minimus now whether the harm was caused with physical as opposed to economic here there was minimal physical harm she vomited she claimed she gained breakdown really no long term or significant complications resulting from the emotional suffering and that's what in a constitutional due process analysis the first district in twenty eleven cared about for perhaps ability on this physical versus economic that was called lay sean versus controls first district twenty eleven opinion and likewise just like insolvency there was really no alteration in the plaintiff's normal daily activities which you looked at that case what happens here she didn't miss work she's been working consistently ever since the incidents occurred she didn't change john she didn't have to move she didn't even change her phone number notwithstanding this issue with phone records and her family activities really didn't change his new crew school fundraisers found we can  chicago holidays birthdays so on balance we would argue that notwithstanding a very very limited physical harm that with respect to that criteria it's very diminished that factor of reprehensibly the second tortious conduct events an indifference to or a reckless disregard for the health and safety of the others were to the trial court find know absolutely nothing whatsoever no one else was health no one else the safety was impaired by this contract the appellate court was literally silence on the issue outside the misconduct committed toward the plaintiff two other similar conduct when considering the recidivism factor and we've also said that the court may look internally to defend its conduct toward the plaintiff and the court importantly in low excavating you reviewed other cases that the parties submitted to the court and you came to the conclusion and reviewing these cases that each had a pattern of misconduct that typified the manner in which they did business in other words does this company did this defendant do business this way here let's talk opinions were based on an offer of proof it was not evidence it was not evidence to the trial court it was never presented to the jury and in fact the appellate court never ruled that this offer of proof was evidence that otherwise should have been submitted to the jury and at the offer of proof now to say we want to motion eliminate and repeated instances in the trial court that they couldn't put this evidence in because there was no evidence of pretexting there was no evidence than in any case there was one case one woman by the name haud belie were five occasions where her phone records were obtained where this private investigator on five instances i think over several months got the hand written records and turned around and faxed it to our client you would happen to be m w which this court relied on evidence instances the supreme court held that there was no evidence that b m w persisted in a course of conduct this is important after it had been adjudged i will offer or on one occasion let alone repeated occasions and that north american knew that the records were obtained by pretexting and just like lho excavating there is no evidence of a pattern of misconduct that typified the manner in which the appellant did business therefore we what did the trial court say the trial court said that the defendant north american undertook the investigation to protect its business based on credible information it was c and not with the intent to harm the plaintiff this was not disputed by the appellate court the appellate court nor said that the trial court was wrong in this finding in fact the evidence was clear that north american got the records from the private investigator and what didn't do the the rule is that whether or not there are sufficient facts to even go to the jury for purposes of should've damages is a decision that the court makes and we're saying the court should have made the decision that that should even have gone to the to the jury lastly to the extent that there was a special verdict as we pointed out the year of the special verdict is consistent with the general verdict so i believe the in the special erotic stories are meaningless for purposes of this decision and you look at the entire verdict so getting back to my point the question whether was  didn't submit them to people we didn't give them to anybody so they could find out who she was or who she was talking to or anything like that we literally looked at them and in a few instances checked those numbers in a reverse directory to see if she was talking to competitors or clients in violation of i know you here in issue with respect to the one point seven five million and you have make a due process argument with respect i know you have in the issue i'm a one point seven five and a frame and it seems like you're all also making in argument with respect to why there wasn't a directive i mean is that part of your that's part of your claim as well on the on line i'm trying to understand i just picked up something the court that we're talking about pretexting is it is an action which has trickery or deceit in i mean they could have gotten these phone records i would the theory of their case unless someone stated they were missing or somehow did something with the phone companies to get the records and i can see that however i want to argue this there are a plethora of cases in the appellate courts where when you have a tour and intentional tort the conduct that constitutes the element of clear of the claim is is malice and even though the tort otherwise involves an intentional trickery it shouldn't be given the weight that it typically otherwise would have been given because it was needed for part of the elements of the underlying claim and the compensatory damages as this court held that low satisfied the plaintiff for that allege were that proven trickery she's already been compensated for that in the compensatory day images the second guy possibly would argue reprehensible in this case is the very very very low base all the factors the second which raises a the big constitutional issue here is the disparity compensatory gets sixty five and says gee that's about three times one point seven i satisfy the ratio and a story now with all due respect that is contra low is contra of the blount decision from the first district in two thousand and eleven it's common decision and she also relied on another decision from twenty away from the second district called kirkpatrick versus i believe strikes work under the consumer fraud act where the same thing was done the plaintiff obtain legal fees under the consumer fraud and when the fourteenth amendment challenge went up they added those the court appropriately added those awarded fees as compensation under the act to the plaintiff compensatory damages which in that case were nominal and they got like a three point five to one ratio which was tremendously y punitive damage award is going to be meaningful if it's going to do its job it's going to serve the significant state interests of punishment and deterrence it's got to be enough so that the defendant listens and this defendant who's still not heard what the jury found we also fight that out even though we had to have extensive briefing on it the defendant got up in oral argument in the appellate court and admitted that the information was not confidential in a legal sense i'd like to give you a brief overview of the case spend a very short amount of time on knowledge the defendant's knowledge and then get right to punitive damages as i mentioned it's an intrusion upon seclusion case there is no element of pretexting it is intrusion prying into the private affairs of another now it could be done by looking at one through binoculars it can be done in a lot of different ways but pretexting is not an element and in fact fraud and deceit are not elements and it's the fraud into the seat that the defendants used in this case that is the reason why punitive damages are wanted to and necessary to deter him punish this type of conduct so what are the elements of the story highly offensive conduct an intrusion in the private affairs of another and harm now in our case there was agreed agreement by the parties that phone records are a private matter but that would be the fourth prong but the party said agree to that it's not pretext and it's not one of the elements of the offense of snail offensive conduct i original complaint did not even included the town for intrusion upon seclusion it was a procuring cause claim she brought her suit because she wanted to benefit of the business that she had brought into north american the only evidence in the record supporting  somebody from north america at the o'hara way sis signed it they brought a notary there so that was that there was evidence from the affidavit that was introduced and there was testimony no there was no testimony there as to the court review that i think that's got to be a i think it's a matter i think it's timid of credibility you know him now because i don't think he could even come in i i think the entry of evidence is abuse of discretion massive investigation despite getting seven hundred phone records over a period of five months despite saying subpoenas to all their customers despite spending thirty thousand dollars investigation they didn't come up with a single person with personal knowledge that was able to testify about kathy roll or try to take any business from north american there was no business of all in the record supporting that and the court's opinion when you look at it says it is based on the affidavit and in fact north americans castle in the closing argument before the trial court on that issue said i agree with the plaintiffs i can't win unless you believe the app today if you  in this case the factual basis for the claim i believe in what started this claim was not misconduct by the smaller that nobody ever knew about what started this action was that m appeared to have brought in the most lucrative business of her career and immediately when she brought this and four months before her dismissal north america try to separate her from the business in new employees they told her train employees to take over and eventually they give an ultimatum they said and les you signed a new agreement waiving your right to commissions on the map quest business your employment so for and rather than a c to their west for employment ended and at that point the highest ranking members of north american began became involved in the investigation the president testif that he started the investigation and that he wanted to get misl always phone records and he authorized the employees take information that had been maintained supposedly under lock and key to give that out to their convinced the phone companies that they were talking to kathy lawler and they released this information the the evidence of their knowledge is overwhelming i started with the government i was in a public defender and if their statement as to knowledge is right then i would have a much easier time in my job knowledge is proof circumstantially even in criminal cases where one has to prove knowledge beyond reasonable doubt it's proven circumstantially all the time you can't get into somebody said you've got to look at the surrounding facts and here it's impossible to say they didn't know what they were doing and it's impossible to say that there was no evidence from which the jury could find could not find that there was knowledge they started the investigation to get a phone records they gave out the very information needed to pretext bait received information repeatedly over five months they never said why are you sending me this bait ordered more it was the highest officers of the company that google the numbers now i'm i'm not suggesting that but i i i'm just suggesting that they were well the dissemination of within what was called the leadership team of north american but i think it's really throwing the court in the wrong direction to compare t seclusion is the prying into one's private affairs publication is not an element the fact that there was not a widespread publication is really of relevance to the client and does nothing to diminish this of verity of the of their conduct and i want to make sure that i get to the punitive damages but i think it's important to remember that once the court decides that a case should go to the jury and punitive damages jury the i'm sorry the trial court usurped the role of the jury it made factual determinations as to the reason for the cause of the investigation and and was done to protect the business by north american but that was an issue for the jury to decide the jury was the fact finder not the trial court additionally the trial could give its discretion because it's sad and if you look at the record this is what it says the jury didn't have the ability to consider lawler's conduct as to north american and therefore i can make a decision based on a global resolution i could take everybody's conduct into account there's a couple problems with that number one to usurp the role of the fact finder but even more importantly the whole defense of north american everything they presented a trial was a business justification defense it's what they started with today fate and the jury heard this and that and the jury actually heard hassle from north american read from the affidavit in the closing argument and say we had incredibly damning information based on this information what else could we do and read all these allegations and the jury heard it and rejected the jury heard it and considered what would be appropriate when someone intrudes into one's privacy uses fraud and deception to get matters that are private so those two things additionally it was abuse of discretion for the court to impose a global result the court was deciding the breach of a douche or decline the jury was deciding the intrusion claim it defense what could the trial court have taken into consideration if it were going to exercise his right to remove sure it could have decided if the jury's verdict was a product of passion partiality or corruption in this case there really wasn't evidence of that because the jury found for kathleen waller on some counts if not for north american on some counts there there was nothing in the record to find that there was nothing in it and the one thing on the claim that they intruded upon her seclusion through this pretext and scheme and additionally i think an important factor is that the trial court's understanding of the evidence was just incorrect and that's why the there was no testimony from anybody that there was a restrictive comment confidentiality agreement there was no testimony from anyone that they ever told kathy lawlor she could not disseminate that information there was no evidence that that information constituted a trade secret the information was within kathy said it's the pricing she did on her work in her sales it's her own work and she's using it to interview she's not using it to compete because when she sent the letter she did not even know about the new mapquest opportunity and i think the coup de gras is that the feds got so caught up in the appellate court argument and said how do you take that evidence and impose a five hundred fifty five million five hundred thousand dollars unit of damage judgment against a worker who for the prior seven months writing over three hundred thousand dollars  business and was only paid when she generated profitable business it is an abuse of discretion it it just it just can't follow it can't follow  litigation in determining what is a reasonable amount to both punish and deter a defendant and the court clearly indicates that attorney's fees may be used after the jury comes back to determine whether or not the award complies with constitutional standards and that's what the court did in this case i think it's important to point out the jury was correctly instructed there's no arguing that's ever been raised about the instructions and the jury was look at everything that went on in this case and you look at this record if we are going to a while a defendant to make it so difficult to get an attorney to protect such a fundamental right is a right to privacy no one will ever be able to file suit and if you look at the cases that we cited mathias and kind of middle or add what the courts did in those cases they said pretexting and indeed to join instructions themselves if you review the record specifically use pretexting is the language for the highly offensive conduct next is the affidavit which it questions have been asked mr bristow gets on the stand he attests to the af yes i signed it yes i signed it under oath yes i specifically used these words in the after david when i did it yes yes yes then he says but they weren't true at the time i did  now the judge determined that that was sufficient and she literally said in her ruling i don't believe i think is literally not telling the truth i believe what he said in the affidavit time she chose to believe the affidavit and think things in the record and i do think the appellate court even mentioned that mr bristow told north american that lawler was trying to steal the business based on testimony of todd and paris which was not objected to even though that might have been here say they didn't object to it and yes so she can discount his testimony yes she can choose not to believe it right and that yes you can choose not to believe my testimony right but it might be a distinction without merit and often is lost on a jury eyestrain in this case we're dealing with a judge that's right but isn't to take what was in the affidavit that was used for impeachment is something that i agree with the court but what i what i don't agree with at least what has been articulated here is that there was other evidence in the record that she specifically identified was the basis for her decision that was not just the affidavit so her both her disbelief coupled with that other in the record was sufficient for they were a breach in i was honest i'm adding the fees to make sure the lawyers get paid all right and then they'll be some extra for that for the plaintiff that's what you can't do you cannot do that and that's what you said at low you can't you back what you didn't low the fees were a half a million over half a million dollars for the plaintiff over eighteen year period they thought that union ok over an eighteen year period and what did you do you remitted it ok the fifty thousand dollars which was ten to one i think or a level one for the forty eight hundred dollar compensatory damages here the compensatory damages were significant there were sixty five thousand dollars ok and you said in low cheap i understand it was a lot of legal fees but i can't just use punitive damages to write people a check for legal fees i have to which i'm looking at as conduct punitive damages looks at conduct not the individual ok more than anything and this business about our business justification defense we didn't we don't have any a firm of defense that this is justification that was an issue as to whether what the motive of our contact was for purposes of as to whether or not it was intentional malicious to g hello and said based on that i'm making a decision and the appellate court under and in nowhere said that she would be used her discretion to do that or identify on what basis she abused her discretion to get that if literally just says we disagree case that we can't be liable for the punitive conduct of an agent in this case not just an agent but a sub agent this company discover they didn't even talk about that in the court this company discover we didn't control probate and control they s it you know the essence of control is you've articulated in the root case recently and i know it was an attorney malpractise type of an issue case but you can spend a lot of time in that case talking about what an agent is and what an independent contractor and the scope of liability and the case is very clear that need absence of the type of control over of or over a third party even if an independent contractor it just can't make them an agent and that's exactly what happened here we just don't see this with this is the scaf are they literally the only evidence is th control discover and if discovered was the one which seems to be the theory of the case that they're the ones who went out and got these records improperly i don't know how you couldn't shoot out of that knowledge to us when we didn't know about it and i don't know how you can appear that we somehow control this discover let alone control pro we got the records we didn't look at the manner in which they were trying to the source of how we got them that's why they are independent contractors and the appellate court literally ignored discovery completely with that we have multiple levels of relief we seek depending on the different claims and with all of that i will thank the court and it has been a privilege to be here and have an opportunity to argue in front of you thank you thank you mr mason mr can thank you for your largest today his number one one two five three zero lawler vs north american