this case should be reversed the first is that in ruling on summary judgment motions the district court did not believe the coolies evidence  reversed is that the new york times actual malice standard does not apply here because the defamation statements were fell's commercial speech not entitled to any constitutional protection let alone the heightened protection of the new york times rule fourth reason that you quickly you can structure this any way you want but we've read the pleadings wouldn't it be who of a public figure and goes to the actual malice standard and if if we review that evidence and do it every view it in light of  malice there's clear and convincing evidence that the statements were not substantially true we submitted the evidence of the employment reports themselves which this court in the macdonald case found that as a matter of law were not fraudulent and one of the main defamatory statements in the in the j the statement was that there was a department of education investigation and coolly submitted evidence clear evidence that there was no department of education actual malice before we figure out what the standard is so that's ok you want to do that will do that you're focusing in on whether these statements were all to mostly true or false and i would submit to you that it least it seems to me from reading all of these cases that in virtually every case of defamation there is something that's false that's that's why there's the lawsuit that's brought when new york times says assuming that it applies to find actual malice we're really looking to the knowledge of the person who made the statement because of the reports of first amendment rights and why are we going to chill the press by virtue of these these type of defamation suit so i don't think anybody really disputes that there may have been some things that turned out to be false or close to being false so could we focus on what the test is which is  subjective test going to the state of mind of the declarant not whether they're right or wrong but your honor it's true well the actual malice test as i understand it is to show that there were fast statements so that's the first part and second part is to show that either the statements were made with knowledge that they were false or  they were made with reckless disregard of whether or not they were true right and the reason that i wanted to review the sequence of events with the source of  information and what mystery and ziska knew about it is because the evidence deck coolly submitted on summary judgment showed a reckless disregard of the tr are five ways to show reckless disregard purposeful void in some of the of the truth deliberate decision not to acquire knowledge of probable falsity a high degree of or the accuracy of his report on the first grounds for showing reckless disregard a purposeful avoidance of the truth here we have evidence that the claim that there was a department of education investigation was a possible hoax that's what the blog post the source of m discus claim said this is a possible hoax that i reported yesterday and i'm going to drop this story until someone contacts the department of education and determine whether or not there is an investigation testified that he saw that subsequent post but did he contact the department of investigate of of education before he published the statement that cooley was under investigation no he didn't the same applies with the with the claim that cooley's graduates were defaulting at the rate of forty one percent they are student loans that was information that was readily available to mr and ziska on a department of education website deliberate decision not to acquire facts that might confirm or the probable falsity of the statements here again department of education investigation he's been warned yet red flags you knowing that this claim is a possible hoax and yet he does nothing to verify he goes ahead and publish his anyway the same applies for the default rates and the claim that cooley was under reporting the default rates for its for its graduates if you had gone to the department of education you would have falsity there we submitted evidence that mr beilin wrote a letter to the blog post saying that the department of education claim of the department of did not know because that appears in your briefs and now it appears again in your like you meant today is as i read the material when he says that in his deposition you've got to put it in the context of what he's being asked about and he's being asked about his personal knowledge of any deal we investigation that statement doesn't refer to the statements in the draft proposed class action complaint as i understand it correctly so am i reading the record right or wrong with respect to the department of education investigation that's that is not repeated in the draft from point when he says that when when when you quote statement that he didn't know what are you attributing didn't know too didn't know what what are you using that for i'm using that for an inference that he did not know whether or not the statements all those statements cd underground post were true because that was all of the steam oh statements if i go back and look at that i'm not going to find that he's only talking about knowledge of the dui investigation well you know certainly mr sysco will take that position but i go back and read the deposition that you're referring to is it going to be limited to is now the investigation mr deposition i don't know but but what i'm talking about not that your client did not have that wish actual malice because this was commercial speech you can see that you did not raise this issue in the district court also did you did you not did you or did you not raise the issue of commercial speech in your complaint that you pleaded we did we did not your honor you did not ok what you know why should we consider why should we concern ourselves with issues that are not pleasant claim that pardon is in a factual matter yours you're saying that as a matter of fact this is commercial speech but you just told me you didn't plead but we didn't play a good complaint we didn't plead the legal said ok so maybe they somehow the law firm failed to raise this very important issue in the district court and we should review it for point here and i'm thinking well is it even before us in the  strauss is going to have five thank you this case has always been about one thing to punish myself and my colleague mr strauss for having the  appellant does not come remotely close to demonstrating that the statement riposte did with malice were for that matter even more negligent standard and i submit just look at their two thousand and ten employment report in its two thousand  finally released revised data showing that only seventeen percent disclosed any type of or only about three i'm this is not a jury that only happy right there yeah they do anything in two thousand and ten in the manner in which they reported that was inconsistent with the way schools were reporting because that's the way they were asked to report yes they made salary information i mean there's also these allegations that there are reports that the students are defaulting on loans so forty one percent of the school is currently being investigated i mean you've got these other al you s just in terms of the other statements so what right so i think we all know concede that there were allegations about inflating their employment data is wrong and let's move on to favor of two grams first he correctly noted that the statement quote is qualified it says there are reports of certain default rates in a deal we investigation it does not directly assert the truth of a default rates investigation secondly coolie fail to demonstrate he noted the coolie fail to demonstrate malice considering that my statement for based on two detailed reports by and none of this whistleblowers that were posted on the education website well education matters no cooly makes big hay of the fact that mr johansen the author of the the website all education matters purport to be retract should matter after i posted on trading on the ground and it was only after when mr ting the contacted me five days later and the reason why i was never able to establish this fact is because they never or asked me about this document in the seven hours of deposition in their seventy five page consolidated motion opposing summary judgment didn't raise this point once so i was never given the opportunity now in terms of the commercial speech arguments we found to serve apply brief directly addressing this issue and the question of whether they wait wait did and i just like the court so look at kentucky as opposed to the question of whether prodi can address an issue it failed to raise before a lower court so beat six circuit expressly rejects scooby's argument that they have not hide in first memory protection and my last point is that there's a good reason why beat court should it tonight their claims on be on that single sentence and j d on the ground that's the issue of damages report someplace it says yes so let me get to that when i finish my hope sorry for you yell back at me thank you isn't there a supposedly expert report someplace that we're that claims that they've been damaged tunas some seventeen million dollars yes in the face of that you don't have a corresponding expert report on the other snow but we moved so why on earth would we get into that today we moved motions and the  why on earth would we get into that can't the court look at our we preserve it as an argument we moved on in motion and i kind of feel if you just look at their expert reports it's  briefs on footnotes you know so i mentioned briefly well on the probably not such a good idea to refer to courts of appeals as you guys are particularly when you look at the composition of he came to the firm indicating that he wanted to be involved in class action work he presented a couple different options about things he wanted to work on one of them suing law schools the next time i heard about what mr and cisco is up to his owner received a letter we one of the things that has troubled me throughout this entire proceeding is that a member of the western district of michigan a member of this court a member federal district courts around the country a member of new york state bar i take my obligations there incredibly seriously i have told cooley time and again of my role in this i have built a comprehensive record in the court below a great personal and professional cost to me because i have my own practice indicating that i never is that i'm a liar about this and this is incredibly troubling to me and it's very troubling that the big can come into this court and make similar allegations despite time and again presenting evidence that i had no role in the defamation i c arise our position has been it was our position was that he had no authority to do class action lawsuits that you would deny them the authority here at the time that mr insist was circulating  class action complaint he had no clients for it he was looking at perspective that wasn't part of the duties that he had with the law for the agreement that we had and it's in the record i don't have the cite here the agreement that we have  it was marked attorney client privilege you know i've reviewed very carefully what mr sandusky did in this case the what it did with respect to that draft complaint because obviously that's an issue with respect to whether or not there would be cross claims or definitely here what he had association with this with this case i have told them time and again and built a very comprehensive record of my role juncker did not address my role in this matter the important issue here of course is the issue we are assuming that cooley is a mister suppose it alleged actual malice to me having no idea that this was happening as i thought about how i would try this case as to myself and my law firm it would be very difficult for me to make a presentation to the jury to explain to them that my state of mind cannot be at issue here because i had no idea there's nothing in the record about it i mean that they won't be able to say anything now if i may just make one conclude point an issue the fact here is that i conducted the investigation until such time as i was alerted to it mr and this guy had been doing and by that time everything had already been out there and i had no actual malice here because i have no animosity towards coolies in fact they're suing me now and therefore i can imagine how the suit could proceed against me they can see that these are all potential issues but they're really not right at this  just to demonstrate to a jury in the western district of michigan that i had no part in this i think would be a great injustice thank protect its good name in the u s supreme court has recognized that basic right is on a par with first amendment rights that the have to remember that the defamatory statements in this case were made months before mister duke made those comments explaining why he took action when he did to protect cool his good name that was a purpose in the only purpose of this lawsuit with respect to mr strauss his involvement in the district court did find that there was ample evidence of his involvement in defamatory conduct mr strauss retraction statement that he posted he acknowledged that the investigation was on behalf of the firm and he retracted the defamatory statements on behalf of case judge opera's denied a motion for sanctions and said there's ample evidence from which a jury could find where does it say in the statement that strauss posted on g d underground that the statements of be made on behalf of the from i'm referring to a letter back i'm think i might have those mixed up your honor in his letter back to me it was on behalf of the firm and which to read to post a retraction it and then the date j d underground post itself it says this firm is conducting an investigation so in that what i have before me that says they're conducting an i'm sorry your honor but the post it so does the retraction itself does say it has been brought to those firms attention that post on this website entitle investigating thomas