reports of where this is a second time where before the court in the prior appeal a panel held that mr wilson had sufficiently pled facts that showed that career education corp had in fact breached duties of good faith and fair dealing when it ended an incentive compensation plan earlier than required to do so by federal regulations and after mr wilson had actually completed his performance under that pla we went back before the district court and we proved facts consistent with our allegations in the complaint we proved that career education was actively promoting its incentive compensation plan up until the moment it cut that plan off leaving its admissions representatives like mr wilson to reasonably believe that they would be paid for the work they'd done and we also do evidence that c e c career education corp cut off it incentive compensation plan early for its own benefit not due to federal regulations the district court disregarded this evidence on summary judgment in so doing made two critical errors the first of those the decision to use an earlier date as opposed to go all the way to the end of whatever time was a lot of by the regulatory the new regulatory regime but for causation is mentioned in the prior opinion so is the  instructions were that there would be discovery and then the case but proceed to summary judgment and there must be evidence at this point for connection between the in the money power grab the motivation that's being alleged here and the decision to use the february date instead of the end of june and your honor the idea that that that what i just met and the reasonable expect expectations  instead of but for causation when differences is clear it's been set up it's been something of provocative among the courts since probably the gross decision from the supreme court in two thousand and nine announcing but for causation for  the birch case where he kind of identified out numerous things could be the but for causation but for cause of an event without being the sole cause and that's really what we have here let me talk about the evidence of but for causation rating financial condition with each with each and suing quarter of two thousand and ten how could we hold the decision to alter its employee that has to be answered and let me try to answer that for your honor the answer is that career education corp could change its compensation plan that had that discretion under its own contract but it had to do so consistent with their reasonable expectations of the other part reasonable expectations not every expectation rightly wilson had so where do we draw those expectations in the prior court's opinion we see that they're drawn from but the course of dealing between the parties the course of dealings and we identify this is in our brief into scarpering the course of dealing with these parties filled that up until the moment career education said we're no longer paying incentive compensation under this plan was promoting the plan to its employees as a compensation tool that's important because remember there's a lag time between what mr wilson would do under the plan and the of the money that he would get under the incentive compensation plan so when he's busy and third quarter of two thousand and ten start working above his goal started more students believing that down the road as c d c says it would take time but it would pay off be if she actively unreasonable for someone to police that that kind of discretion could not be exercised where changing business heineman worsen  financial condition of the company i mean a business that retains the right to alter saudis of a compensation structure can i think i just don't think it can be said to have acted in b faith when it does so at a time of such financial i don't know downturn finance financial troubles and took to one point that you honor made there certainly a company can change compensation structures going forward career education certainly could have done so going forward and in fact that's all they had done throughout the entire term of the incentive compensation plan up until the time where it decided to cut off the planet december and tell folks like riley wilson you're not going to get paid for the work you've done in july august and september that's the third quarter the second point your hon to the notion that c e c must have retained discretion to do what it did because that's what the contract says that's actually not in comport with illinois law illinois laws clear that when one party does retain full discretion under contract the good faith and fair dealing duties fill that gap to make sure that the parties expect reasonable expectations are met the notion that your honor just articulated was actually the notion the judge would ar we were in isolation could c e c have done this perhaps we didn't work in isolation c e c didn't operated by solution as the prior opinion noted the party's course of dealing is critical here  admissions riley wilson's boss a powerpoint presentation of about the supplemental compensation plan that plan that tells you work hard now it's going to take time but this will add up for you to work beyond your  reasonable for mr wilson to be motivated by the plan the answer is right misery's args statement that was see season ten and under the course of conduct of the parties it was clear that that was the intention now back to the question of cost and whether cost was a cause former c e c i mean the planet earth you see e c s own evidence on this point is that the biggest players in the decision process their chief financial officer testified it was about cos the chief administrative officer and one of their most powerful business unit had testified that they all moved t the idea to move the plan and terminate the plan early on required by federal regulations was due to cost now the district court weighed that evidence on summary judgment against the evidence of the c e o saying it was my decision finally and cost did not motivate me that type of weighing of evidence is in direct versus direct evidence is very close to the type of exercise this court just very recently criticized in the vs werner case title seven case that was about and direct and direct evidence time now for it's really on summary judgment have no business weighing that that evidence the same is true here cost pervade the process you see that not only in the testimony of those three witnesses but also in mclean the human resources director who said the cost probably influenced the decision to push the planned terminations date back to february from two thousand and eleven date for terminations when we respectfully submit that judge brown correctly concluded that no reasonable jury could have concluded that that was the platform reason for selecting the federally this is you know of the argument seems to be that career education continued its active promotion of the plan to these admissions representatives you know continue to s them that their efforts would be worth and eventually pay off into two thousand and eleven how long did career education make such statements and is there evidence that those statements were made at a time when her education could not reasonably could not reasonably believe that the bonuses would be realized i think it's important to look at this chronologically see what was happening here are so the proposed final regulations that would have proposed getting rid of incentive compensation came out in june two thousand  straight away gary mccullough the c e o of the company sent out a memo to all employees saying that these proposed regular are there where we're posting the press to the apartment department of education's press release for you to read and those regulations if they go into effect will go into effect on july one two thousand and eleven they were not final however until oct twenty ninth two thousand and ten that's when c c knew for sure that those regulations would go into effect getting rid of the incentive compensation required and two to do away with incentive compensation for their admissions reps the e mail that my opponent is referring to is on july won two thousand and ten we respect we submit it  most it says it says it fact the opposite says our messages around over promoting the area see prayer has been tweaked given the proposed regulatory changes in other words we're changing the message should missions rep's given that these regs regulatory changes are out there but again we know we don't know for certain that it's going the way we know it's going to be at least around for another six months and so we want to make sure that admissions reps still know that that plan is around because the regs may not have been finalized and might have been changes to the regs before finalize the replacement plan on till february of the following year it was a total state of flux lots of back and forth communications and there's no evidence that c d c continued to quote overpromote the plan after october twenty ninth two thousand and ten when the regulations became fine so i hope that answers your question we're still left with the disagreement among the executives in your client as to what should be done testified on equivocally that cost had nothing to do with this decision in fact he made this decision for two reasons one of which was he wanted to be very conservative with respect to regulatory compliance and he knew that even if you terminated the plan on a certain da we didn't know the company the know what that meant certainly had been no guidance from the at that time and that was one of the reasons why mr mccullough went to the concert with with that date because he didn't want to be in a situation where some payments might have been made the contemporaneous documentation of the meetings of the task force that was looking at at that decision they talked about the need to be conservative that need not to be the test case given what was going you the second reason the mr mccullough testified was the reason he's selected fabric twenty eight was that he wanted to align the admissions reps annual pay cycle on pay raises with the rest of the organization which to pay creases in a rolling twelve month period they want to put everyone on march one that would have the added benefit of making sure that the admissions reps got the benefit of the supplemental plan as soon as possible in march one so that's my first plan in fact we spent slightly more than a million dollars more than what we had been projected to spend in december had we extended the plan out to maybe thirty one was distributed differently  macro economic level there were no saving yes and in fact if we had intended to save costs why would we have made the decision to reinvest seventy five percent of the two your average of the supplemental compensation plan into base salary which every one  agrees was voluntary on our part we were not did not have to do that why would we have added a three percent pay increase why would we have not terminated the plan he even earlier as mr graham was advocating for the summer thirty one two thousand and ten when you get it from morale profit education the industry is under attack from congress there's hearings there's mystery shopper programs and he's trying to make the best decision spot well the equivalent of mystery shopper i guess a b c news had like a mystery students come in and there was an expos on that not for c c the for one of its competitors and by the way its competitors were terminating their criminal compensation plans even earlier than we did some as far back as september two thousand and ten so again it is there is simply no evidence that there was an opportunistic grad who came up in c q i don't know that's the case here and i don't know but there is no evidence of opportunistic grab much less that  saving money was the plot for a reason for selecting the february twenty eighth date and although i do want to also address my point of statement about mr wilson's reasonable expectations i submit first of all it's it's notwithstanding that mr riley could not have recently acted that when the plan ended he would have been paid for students in the pipeline when the plan express we provided otherwise the plan specifically said that the  in every presentation that is the goal when we made the fun of it when we tally up the final numbers and i want to make another point which is that maureen cale who was mr wilson's best witness who testified that she believed that mr grab influence the decision and that cost was a factor she was not around she left in january two thousand and eleven and she testified that she did not even know if there were cost savings because obviously that the details of the replacement plan had not  finalized as of the time she left so again where is the evidence of but for cause ation that a reasonable jury could find supports reversal summary judgment and if the  on the question of whether the admissions representatives had been alerted that there might be a change in the plan mr element in mentioned this memorandum from gary mccall it's in the record for your review  and we have cited it's a two page document single spaced ten point five and at his deposition i asked mr mccullough if he would read it for me it took him almost five minutes to read it there's one line in that document that even arguably references any change to the heiress plan the admissions representatives supplemental compensation plan and when i asked mr mccullough if there was anything in that document that indicated they would stop paying in february he agreed no on that but there  nothing that said yes in the course of dealings of the parties as a as this the court has previously noted and illinois cases previously know that the course of dealing of the parties is key particularly when we're talking not just about historical could course of dealings but in this third quarter of the money that we're talking about the student starts for the third quarter of two thousand and ten career education corp is actively promoting now my opponent noted that there is language that there were over promoting well they certainly were under promoting these power points that i noted in the record they were pushed out to new employees c e c is informing new employees in the port third quarter and ten that this is the plan that's going to get them no more money and it might take time but that extra effort is going to be worth it the notion that c c did not want to be the test case for noncompliance really that's just another way of saying that they acted in their own business interests whether it's to align h r processes to save money to make sure that they're not under the microscope of the federal government those are all just different ways of working against the other part expectations and as the court noted it is really the reasonable expectations just because the e c believes that it could turn out set off the planet any time for any and any reason this court's already held that wouldn't be a reasonable interpretation of the plan the last point i'll make is this on the issue of cost savings mr mccullough himself not in testimony but in the e mail of december twenty third two weeks after three weeks after he let the