good morning susan and good morning it please the court my name is rex hunky and i'm here on behalf of the defendant an appellate all state plaintiffs have two claims in this case one for defamation and one for violation of  this is in liable for quote case the plaintiffs must prove that the special damages were caused by the defendant's statements we submit that the plaintiffs utterly failed to prove that and therefore the defamation award should be reversed we begin with continental not which is a decision by this court involving libel per quote and the proof of special damages when there's been a trial in that case this court reversed the order affirmed the reverse light should say of the jury's verdict because the plaintiffs you know per quote case failed to put on any evidence that any customer in that case had seen the defamatory statements and refused to deal with the plaintiffs they are buying nuts refused to buy nuts from the plaintiff because of the defamatory state we believe that continental not is controlling here there was a defamatory letter about the plaintiffs knox the plaintiff was in the business of selling nuts seven or eight of the plaintiffs customers sa letter and at least three of them after reading the letter did not buy from the plaintiff in addition another hundred forty of the plaintiffs customers over the two years after the publication of the letter did not buy from the plaintive the plaintiffs profits the crease the plaintiff sales decreased the defendants sales increase and the defendant sale or profits excuse me increased but the plaintiffs called no customers to testify about why they did not do business with plaintive similarly here the plaintiffs called no employers plaintiffs offered no evidence that any employer refused to hire them because of the allegedly defamatory statements welcome but the argument in response is that that category of evidence is not strictly necessary and it would be implicit in this case faced nature of the market for analysts of this caliber that the causal link is there and so the line of cases that requires concrete testimony from  customers or clients or employers is an applicable here yes your honor that's certainly what the plaintiffs are intending but we would respectfully submit that there is no authority for that proposition and that it would completely change the law of liable for quote because the law of libel per quote is the young must prove special damages specificity that they are not to be implied but must be directly this court said and continental not and that's what wasn't gotten here if this were a i book for say case the situation might be different but in a liable to quote case to ensure that people knew about the defamatory statements and relied upon them in their actions the laws require that there be a showing of special damages and that those were the result of someone knowing about the defamatory statement and then acting based on the defamatory state so there is no resubmit authority to the  contrary in l annoying law in fact in the united states law this is a rule of the common law that has existed for i'm not sure exactly how long but an awfully long time and it's in the end to protect free speech what it does is ensure that when a statement is not defamatory on its face to guarantee that there was damage to the plane if the plaintiff must come forward with customers or in this case recruiters or employers who say i did not hire the plane if i did not buy from the plane because i saw the defamatory statements and that caused me not to deal with the plane and that i submit in fact is hornbook law with the plaintiffs want to rely on is inferences that because the statement was published statements here were published and they didn't get jobs therefore that must have happened because of the defamatory statements but that's precisely the reasoning that this court rejected in continental not there the plaintiffs said customers read this letter customers stopped dealing with the plaintiffs whole lot of other that was three customers one hundred forty other customers stop dealing with the plaintiff after the publication of the letter but no one came forward and testified that the reason they stop dealing with the plaintiffs was because in the letter and therefore this court affirmed the reversal of trial judgment i think what's instructive here is what this court said incontinent will not quote the striking fact about the record in this case is that the plaintiff has not produced the testimony of a single customer former customer what a striking in this case is the plaintiffs have not produce a single recruiter or a single cus i'm sorry lawyer who says i saw the what does this case have to do with credit reporting it doesn't have much to do with credit reporting at all and for better or worse congress has broadened i think to cover things that are not necessarily credit or through that credit being reported all right this is a regulatory scheme that operates on credit reporting agencies and requires reasonable procedures and disclosures and so forth and i think this would radically change right that definitional section cannot possibly be a free standing employment relations requirement that anytime an employer doesn't investigation offense conduct on the job and disciplines the employee whether by firing or some other discipline there since there's a requirement to provide a written some summary right that that can't possibly have been smuggled into the law by virtue of an exception to an exception within the definitional section of the f c r a and i think all employers and employees would be startled to learn that they are in violation of free because i don't think employers in the united states believe they have a legal obligation to provide a summary to every employee that they terminated th argument it doesn't require the showing of any facts and i think the court could therefore hear over decide that issue based on this record because it's legal question either side would have been able to present any kind of facts that would have changed the outcome right this is this is not a factual dispute it's a question about whether this law applies covers this situation that we're not talking about information that was reported to an employer about a consumer's credit and cause the employer to take some adverse action and that's the only context within this regulatory scheme or the employer has some responsibilities as i understand the statute in its totality that employers can't pull a credit report and rely on it to discipline an employee without providing the employee with  summary of what's in the report and what i mean that's that's the employment angle and if c r a did nothing beyond that as i understand it and if you actually trace through the definitions including subsection  which is what the plaintiffs rely on here we're talking about adverse actions based in whole or in part on a communication described in paragraph one which is a consumer the court the district court in this case did not commit any legal error we are here reviewing a jury verdict and in my opponent's argument i heard the word jury mentioned once and that was only describing another case here there is no challenge to a legal ruling the instructions for example this is a case about the sufficiency of the evidence the case was tried to a jury which rendered a general verdict there was no request for a special verdict there was no request that the jury be instructed that the jury had to find that there was a particular employer who declined to employ my clients at the end of the trial the jury found for the plaintiffs and that finding is entitled to deference in this court and may only be upset if there is no evidence no evidence to support the verdict and yet here there is ample evidence viewing the evidence in and all the inferences in favor of the plaintiffs this court should affirm because there is ample evidence to support the verdict actually there isn't any evidence of special damages to the requirements of illinois law which requires a causal link not just  correlation correlation is not causation as the saying goes and the fact which i mean there's ample evidence that your clients were unable to get employment but  that and that correlates with the time period of their terminations and the time period i thought ten k but that's not enough under defamation law well you are disagree with that statement of the law and let me take you through the cases let's start additional work he sought damages under a per se theory and also he sought special damages the evidence he had supporting his claim pretty damaged as was that he was unable to find work and the headhunter said not that he was unable to place him but that someone with this set of him would have difficulty finding work in our case we have that evidence and more which i can go into what the only appellate court said was that was sufficient the court said the plaintiff did not the defendant in that case like the defendants here argued that the plaintiffs had to come forward with specific proof of jobs lost and the only appellate court rejected that claim they said the plaintiffs law did not rely solely on the presumption of damages but also presented proof of damages which the court found sufficient to affirm a two million dollar compensatory special damage award what  it was the plaintiff's testimony as to his inability to find work and the testimony of a headhunter in the field saying someone of whom this would set was said would have difficulty finding work we have the same here each plaintive testified as to their own job search mr rivera qualified as an expert testified as to the impact of statements such as these on someone seeking a first  find subsequent employment so we also dish will testimony read the graham testimony read the testimony about the communication networks with the testimony through the plaintiff's excuse me the defendant's expert about the impact of stigmatizing statements and how they persist anyways if it was so obvious and the job search by the plaintiff's casts such a wide net within the relevant market why wasn't there testimony from a single prospected employer well two reasons first illinois doesn't want to walk doesn't require it well let's just assume that it does ok and second and here's why illinois law shouldn't require it would be an unrealistic rule in a case like this where employer our clients sought employment generally to find those people generally in the market who chose not to hire they don't know why the phone didn't ring they don't know what person would have hired them but chose not to because they but they claimed claimed on the witness stand to know intimately the relevant markets and so it seems to me that a modicum of investigation would produce some witnesses who said associated with the requirement the regulatory requirement to report in a ten k privilege only helps them on actual malice and and as to actual malice there's ample evidence that allstate knew that this was false well what's the chronology on that when did the department of labor letter when was that sent that everything was surprisingly missing that detail i the information about how the modeling the economic modeling that produced the ninety one million dollar estimate was not reliable i'm not sure if that was in the first letter of the second letter you but that fact was known to all state from the beginning because allstate was involved in in directing the actions of the era when the era also it didn't need to wait until after the department of labor was advised what mirah had done all state knew what neera had done because they told them to do it so allstate knew when near or came back with their conclusions what it was based on and how it was faulty they knew that it was based on the assumption the trades were time when there was no evidence the trades were time so allstate has a bad case on actually miles your honor and the jury so found if i can return to the legal point that the law here is a question of illinois law and illinois law it is stated that in the cases that we cite almost all of which post date continental not and i'll speak to continental as well and the legal principle i think is best aided in the imperial focused on context and said the nature of the proof needs to be as specific as it is reasonable to require and the cases can apply that principle generally when the defamation speaks to a particular lost opportunity as in continental not the plaintiffs need come forward with evidence as to that particular opportunity where it's generally broadcast such as is imperial in peril or xan or tonka all cases in which special damages were allowed despite lack of evidence as to the particular customer referring doctor so long last then a general statement gives rise to a claim such as ours that without that kind of testimony from the specific testimony from then on potential employers or had one or that wasn't present in this case how do we know if these generalized concerns expressed by the plaintiff that child about why they weren't hired were because of the statement itself or because they were terminated from allstate or some other reason well the chronology first i'd i'd say that's a factual i committed to the jury's discretion but why was the jury's conclusion here reasonable the factual evidence indicated that after the terminations but before the statement my clients had greater access to assistance from in this case the sell side brokers who get the word out and spread opportunity or news of opportunities and that when the ten k was published things got worse they testified that it became tough for them after the ten k was published and it to impose upon the plaintiffs in that circumstance the obligation to find a witness who would say a witness unknown to the pla say well you know is thinking about hiring for a job i didn't post the job these are not run of the mill portfolio manager positions there are senior portfolio manager positions that are often filled by employers seeking out t about the head hunters who now long hair where willing to work with them well getting them tested there's testimony from miss graham as to that fact and there's a question as to whether there's a hearsay issue that was wait so there is that evidence as well so we have the expert proof from mr of arrow the circumstances of the plaintiffs the testimony of ms graham's about face the testimony of the south side broker's about face and that is sufficient under the law in continental not the plaintiff complained that he lost particular customers the customers weren't called and the plaintiff when he testified did not put in evidence of his of his loss there are two elements of special damage one is damage and the other is causation income level not there was a failure to show damage here damage was shown even the defendant's expert conceded that the compensatory damages were eleven million have that that wasn't a liability causation opinion no i understand that your honor and i'm using this point to explain why continental not stands for a slightly different proposition and it's causation ruling applying the direction of the illinois courts should be limited to the context addressed in continental not in continental not this court said we're writing on a clean slate there is no illinois law telling us what to do here and this is what we think said this court in the one nine hundred sixty eight continental not opinion since then the only courts have filled in the blank spots of illinois law witnesses called as witnesses people who didn't employ is because we didn't know who they are is a new argument that's not correct we raised much the same argument in the post trauma motions  testified that she had previously been recruited through people calling her and that stopped other witnesses testified that they had been recruited in that manner mr rivera was recruited to allstate in that manner  zener provided similar testimony and there was testimony that top tier of jobs that such as these are often hired through word of mouth they're not posted on a general website so that is not a new argument was amply raised below and raised to the jury and supported by the evidence let me address the fiqh wrote to me that judge sykes raised our argument is based on the language the statutory argument communications include communications made of some suspected employment a suspected misconduct relating to employment and subsection y two only if made in a consumer report or in the context of consumer reporting in the context of a communication or i don't think that is correct this is not a general employment relation statute and stretching it to cover this case with be an extraordinary extraordinary shock to employment relations that doesn't cover this and i'm surprised just stunned that this point has been completely overlooked by everybody well if if this point is overlooked your honor that i would use a different word and i would say this point has been w side it's we're here now one hundred people and to write a decision saying this is a perfectly fine application of this statute which just committed to a legal error that has substantial consequences i'd be perfectly fine with issue an agency interpretation saying you've covered this the bush administration issued new agency interpretations saying it covered this up during that it creates this definitional section creates a freestanding regulatory requirement that whenever an employer does an investigation of any kind into misconduct on the job and takes an adverse action any kind of discipline any kind of you know terminations there is an obligation to provide a summary of the rip of the communications that passed between the employer and the investigators you know right now that's i cannot believe that that's what any of the background guidance stands for you know and i didn't look at it in depth but that that would shock me well given that this has been raised i haven't looked at in depth either but i do know that the agency both in two thousand and two and then repeated under the bush forty three administration reiterated the same guidance but limited not to all the communications but just to summary which is the basis for a claim of your summary when we write it the only employment aspects to the f c r a is that when a credit report is pulled in the context of employment the employer and there's something bad in the credit report that results in an adverse action the employer has to notify the employee and give the summary it's wholly in the context of communications in credit reports i understand the contextual argument but the plain language of the statute speaks of the employer but actually if you trace that through the subsection y which is what the claim is premised on it requires that the communication be a consumer report you trace it back subsection two which is the one you're relying on after taking an adverse action based in whole or in part on a communication described in paragraph one paragraph one says that it's got to be consumer report one i mean why one says consumers report y one b says the communication is made to an employer which in the case was all state in connection with an investigation of suspected misconduct relating to employment which is where it gets conjunctive it has to be a consumer report and communications and connection made to an employer in connection with a consumer report having to do with credit worthiness credit standing credit past the and etc it's all conjunctive it has to be all of those things in order to qualify i'm not i'm not  sure i agree with your honor i'm relying on the administrative guidance but again this is an argument not raised but it is the tail that's wagging the dog of attorney's fees in this case it is it is there if you're would honor would like us to provide supplemental briefing on the application we can't say you've suggested that it will let you know they will talk about it but but on the issue of of blood which is where this case begins and i think where the damages greatly rest the case is constrained by illinois law illinois law permits the recovery of compensatory damages in circumstances where the context permits a reasonable recovery and permits a reasonable conclusion as to causation in case after case such as in pure imperial apparel where there was no evidence of a lost customer or in tonka where the plaintiff was allowed to recover for lost referrals about doctors who did not testify about doctors for whom there was no testimony that the doctors even heard the false  statement or in law where the plaintiff was allowed to recover substantial damages in excess of general reputational damages based on evidence that is less robust than the evidence in this case illinois would support the recovery of a libel judgment in this case this is law to require so that the element of damages is satisfied the evidence of even concerning the plaintiffs is satisfied  this they can not completely distinguish is the case because our evidence that the defamation was of an concerning the plaintiffs flows from things beyond the four corners of the ten k as is permitted substantial truth the jury found that this was false the jury found it was false based on evidence let's just start with the plaintiffs testified it was false that sufficient for the verdict and finally on them on the malice point  which judge sykes raised in connection with the privilege we do have an obligation to meet the requirement of constitutional mails and that was amply demonstrated here by evidence that all state had before it evidence that it knew that what it was saying was false all state knew that this supposed deets motivated trading was going on throughout all state was going on in their fixed income branch but they chose not to investigate that and instead published something blaming on the equity group something that was the duty of all of all state that my time is up thank you for your attention and i invite the court to affirm the judgment thank you how much how much time think thank you i'd like to turn to the three cases that the plaintiffs rely on here on special damages because i think if you examine those cases you'll see that they do not support the plaintiff's case first they rely on imperial carol and that excuse me in that case the ads were in a major newspaper to competitors one published ads about the other what the court said was where there's a wide dissemination to persons unknown and plaintiff sells to the general public you don't have to bring in specific customers and say i did purchase because of this but what are the facts here they are completely different pla the identity of employers they sent out hundreds of resonates to employers they also had interviews with the lawyers and then said we didn't get hired after the interviews so they knew who these employers were of they knew the identity of employers who they say they're not hiring them because of the defamatory statements therefore imperial apparel has no application because it's a case about selling to the general public not selling to people whose identities you know second they rely on the time case there the court said that special damages had adequately been pled and why did they say that it said that they've been adequately led because the plaintiffs doctor who'd been accused of malpracti specific doctor who is not referring patients to you then you've met the special damages requirement that's the problem plaintiffs have here they didn't have anybody like that lastly they rely on the a shawn case which is the therefore it's ruling on recovering special damages i e out of pocket economic losses in a perk woad case it has no application because it's not a pro quo grace it's a libel per se case plaintiffs then say well we also had this recruiter grant and therefore because of gram we put on enough evidence we submit that's incorrect to employers which she did not say is why not graham stop submitting the resume was it because she wasn't getting paid with a b because she wasn't getting along with this per person was it because she got out of the business who knows what the reason why and plaintiffs put this person on their list of witnesses and then didn't call her so they had no evidence as to why that recruiters stop dealing with this plaintiff's it's again the correlation that they rely on rather than causation recruited out with me ten k comes out recruiter does not deal with me