good morning ladies and gentlemen our first case for this morning is westbrook against alri of any particular state's law isn't the law i mean we are reporting it as we understand the state to be doing it and there are cases since the crisis in decision out of wisconsin that seem to have no problem with our law but perhaps more importantly even if christian weren't there tortious interference that claim couldn't go forward if the statements are truthful is i understand interference of contract so that's the first that i think is an important important issue mckenzie case which is from the wisconsin court of appeals before preston that says the transmission of truthful information is privileged does not constitute improper interference with a contract and cannot subject one to live delivery for tortious interference that's just the just constant case that's true and in this case the  those pieces of information artwork but there are pieces of information which will fail but that's actually not what the district court found mean and i guess what you're admitting really is that the question of whether something is truthful is an element that overlaps between these two causes of action certainly truth would be a defense to defamation truth is also according to the case that i was just information she had been submitted was contested by mr westbrook the same information that was submitted in the summary judgment a complaint right well we don't know that that is the there were no complaints that were made to the human resources department there were there were people who said things but no one ever filed a complaint and it was verbal virtually saying something wasn't the same as being filed virtually saying something is not the same as being filed and that is this certainly is for some purposes we've had cases in the employment discrimination area that have dealt with precisely that issue whether an oral complaint will do and the answer is yes well in this case there is a procedure that the that the marshal clinic had with regard to filing complaints no one had ever alleged until the bunch a memo which w used by the rick to influence the birth of directors knowing it ever are alleged that any complaint had ever been filed about steven westbrook and in fact these very same ok and your argument seems to be that because he survived that vote it's almost as if he'd been acquitted that's all they could double jeopardy clause but all of that is he raced at that point is that to the notion that stephen westbrook had driven people out of the research foundation the boy that voted not to discharge him this is within a politically charged  later these are the straws that break this camel's back well in two thousand and eleven in the fall of two thousand and eleven again the same information to what was rehashed before the board and the complaints and written complaints that you say is case turns on anything else it was false that stephen westbrook had coerced individuals into to intimidate as opposed to intimidating of course but now we talk about your use of the word coercion because i did lease the defense has told us that in your proposed findings of fact you accuse m i mean you know you're using dictionaries and actual people when they're talking about things use words in ways that could create a synonym one of the definitions of versa and i don't see how you get all the way from overlapping meanings to falshood i can certainly see other potential interpretations but when somebody  a well recognized synonym of another word even though shades of meaning will differ i don't disagree with that i can't believe that that makes it far right well i want to take a step we could just take a step back for a moment to put this into context that is the reason that this case where we were first in this case to focus on things that might be defamatory is because the preston case people in the seventh circuit don't know what they're talking about never mind preston go straight to tortious interference law and you wouldn't have had this issue not a problem your honor is that there is a reason that  our precedent and as chief judge wood has pointed out you are the one who chose this form bathroom usual position to be in particularly since there is no indication that i've seen that the wisconsin courts are unhappy with out of any state and if there is an earlier interpretation of state law that we have made that the state authoritatively later says actually that doesn't reflect our i can remember one  case the judge can you not run with the indiana supreme court had to do with an interesting interpretation of insurance policy and what the word accident mean and the us supreme court just said seventh circuit got it wrong like ok you know we will apply what state law is the next time around that that's our job as you say but if you think that there is something that's up in the air like preston at the wisconsin courts have neither agreed with me or disagreed with you need to go to the jurisdiction that's got the authority to change it cases have said directly for tortious interference case that truth is a defense to a claim with into intentional interference with contract so it seems to me we could just drill right down to whether truth is in fact demonstrated here the district court used the term truth in substantially truthful seems like a more productive way to go the elements  interfere with the contract that is alleged to have been interfered with and what was consular has said is that that the question that has to be asked is whether there was improper motive or malice toward the plaintiff excellent evaluations where all of the senators a feud would you please answer my question because i don't see how you're not saying that you've that you seem to be saying that it was under wisconsin law one employee commits a tort by providing truthful information to see or board of directors if their motive is selfish in some way or malicious question about wisconsin law if we are you saying under wisconsin law you believe it's a tort for one employee to provide truthful information another if there's something does the analysis under wisconsin and it is very clear that the conditional privilege for providing information which is right the fifth element in wisconsin law is is yes but i'm not conceding that that we have conceded that the that the underlying statements are true that we have conceded that the underlying statements by other employees were here what we're saying is that the complaints that were made were that information about complaints had been made not filed but made was that over and over in an attempt to convince the decision maker that they should discharge and there was an improper motive which we've laid out substantially in our brief and very substantial improper motive in made please the court after page after page of talking about bad motives we finally get to what this case is really all about and it's a simple rule it's based on wisconsin law we don't have case which sets out these five elements of the tortious interference with contract claim in wisconsin obviously there are other cases well but everybody i see assume is agreeing that there's a contract there was interference in that sense and i don't see that is at stake intentional causal connection so are we focusing on whether what we said was two which states that a truthful statement particular in the workplace here is privileged absolutely conditional doesn't matter whether there's  one employee does not like the employer another employee for whatever reason political or it's an absolute privilege and that's when we talk about interference with contract they're the overall number of general factors that you see in the restatement seven sixty six that's you know you that's when you look at motive and the like but when they when the drafters of the restatement put together it in the whole they included seven seventy two which says flat out that truthful statements are privileged and that's what that's what leaves that's just a holding of leap and and we can see and no go no wisconsin court  allegedly defamatory or whatever you want to say one this use of the word coercion in the november thirty twenty eleven letter to this idea of filing complain opposed to lodging them or in some other fashion orally sending them in third statements about failure to comply with the performance improvement plan and i guess one was never actually former at least allegedly one was never actually put in place and finally this letter from congressman layered talking about talking to forty people who were criticizing mr westbrook if it comes down to what i would for to hairsplitting on things but what's the definition of intimidation versus coersion if it's substantially true in the sense that the essence of it is is the if it has to be some kind of technical definition then you do invite what we've got here is arguments about well i i did intimidate and he concedes that he intimidated employees but i really didn't coerce them and you know we maintain that if they're the contest is between dr westbrook's hairsplitting in the dictionary the dictionary wins because the essence of the the definition is the sane and the and the evidence rebutted evidence here and we prove we presented nineteen affidavits from former and current employees all to show why there were no untrue statements and it was dr westbro burden at that point on summary judgment to do two things one identify what he thought were any untrue statements and then come forward with evidence of his own to show why those statements were untrue and that's what he did in his brief  intimidation versus coercion when the evidence bears that out that coercion by any other name one employee broke down crying we counting how he was treated by dr westbrook like a dog another employee reported in having heart palpitations and described waking up in the night because of how she was treated by dr west and again i mean coercion by any other name is so i mean that cannot be an untrue statement and when we get to the other what i would describe as hair splitting about whether there's there was complaints were filed what dr west book claims that must mean they were shows time and time again i believe there's at least five persons who went to h r and said we're complaining about dr westbrook sol those are those are all substantially true he didn't come back with anything remotely to refute that and we get to the all rick canal a g here dr westbrook is trying to create an untrue statement out of something that was that he claims that the the chronology states that he did not come comply with a performance improvement plan you know again we can all read the  and even details and refuted evidence that he from pamela from paula pretzel that she was intimidated from doing her job in trying to develop this plan in the first place  there is there's no point in even if we're going to quibble about anything about whether what was said i mean that's absolutely substantially true finally we have the the layered letter and here the supposedly false statement is that secretary layered could not have talked to of thirty individuals but dr westbrook does not come forward with evidence of his own and so westbrook and their various allies on the future of the clinic it's easy for me to extrapolate imagine that in many many employment situations somebody who loses an internal power struggle it can wind up committing to bad motive on the other side and create a genuine issue of material fact if the motive is material would you agree with and that's that's exactly right your honor and i think that was what the preston case was getting at is that if you have an at will employment situation and but and dr west has never come up with any evidence that he had a contract i mean there's no contract here i mean he he claims that he's trying to tease out some of its own kind of for  colleague was after me for whatever reason and that we're all you basically have all rolled the whole concept of at will employment at that point because anybody can come up with a with a bad motive about somebody doing something when the problem has arisen in a number of other states as well and the least as i read the law generally tries to avoid having motive be a part of that analysis when you're talking about employees who each other about on discharged it exactly i think that's that that's certainly underlies the the preston case and it really is you know i think part of you know it fits very well with why the restatement seven seventy two was written the way it is and that's why the the lead case came out the way it did reliance on this record if motives were relevant would you agree that we have a disputed issue given all of the evidence of this feud between the two well it depends upon you know what what motive he's he's talking of whether it's a motive for political or ill will towards dr westbrook well the district court said yeah you could you could find some sort of there's went too far in saying that you actually have to have a fully mature independent tort going on with that have any impact on this case it would not be because pres standard for overruling preston but we actually present can be put on the side for the purposes of this case because it can be the district court can be affirmed based on cases likely mckenzie in the basic restatement seven seventy two that truthful statements in the workplace are absolutely privileged and sole even if ill motivated to pick up vantage point yeah even if there is you know there is some kind of bad motive that somebody can tease out of something but it did terms of preston it was correctly decided there's no compelling reason to overturn it but this to affirm the district court it's not so in conclusion we would just go back to the the fundamental here that for alleged untruthful statements there's the district court correctly found there was not a determination that something is true a jury should have been allowed to determine whether there was truth or falsity that's number one number two the law in wisconsin is this to determine whether conduct is justified or privileged the trier of fact must weigh all the circumstances the factors to be considered include nature titration timing of the conduct whether the interference is driven by an improper motive or self interest and whether let's stick with that there is a huge amount of evidence in this case about self interest there's a huge amount of evidence about motive on the mix part to retaliate against westbrook for westbrook drew his job and bringing to the board issues with regard to potential fraud issues with regard to the way that fishery duty should be carried out and so forth that is very well established in this record and a jury should have been allowed to determine whether there was improper motive secondly and finally the doctor westbrook was not confronted in the employment matter with these statements and so this is a matter that should go into a jury and it has ability significant implications for employees who assist directors in carrying out their fiduciary duties they should not be retaliated against all right thank you very much