this is an appeal of summary judgment entered by the district court in a punitive class action brought under the telephone consumer protection act or the junk fax act it's predicated on an allegation that mass advertising faxes that were darden we claim to overarching allegations of error on appeal the first is error in refusing to allow the plaintiff to depose two critical fact witnesses with personal participation in and personal knowledge of communications between darden and the advertising into the that actually commissioned the can be i misunderstood the district court's order mr cohen reason i thought it was pretty clear that you could take that deposition those depositions once you straightened out the status of the other defendants the district courts reasoning mutated over time or at least seemed to evolve over time at first it well that what i thought that he wanted to make sure that there was not an argument that to have these don't no witnesses deposed twice piecemeal discovery is what he was trying so he wants everybody who is going to be in to be in you know whether you know file appearances so that all the right people are sitting in the room for so i was at an abuse of discretion well up until the time of summary judgment perhaps it was not but when for a year and a half the district court precludes the plaintiff from proceeding we can't force these defendants to enter an appearance and why didn't you move for default judge that's an option i don't believe the plaintiffs can be put in the position of being forced to make that strategic why not i mean are there any i don't think this is this seems like much ado about nothing the district court has considerable discretion over the sequencing in the management of phases of the lawsuit where you've got multiple moving parts this isn't especially complicated but is perfectly reasonable it would seem to me to say let's avoid piecemeal discovery let's make sure everybody's in the room before you take these depositions he tell he the judge tells you what you can do and you refuse to do it what's unfair about leaving you with the consequences of that choice because as we've articulated the consequence of defaulting the need to be able to establish a basis for the on behalf of liability of dart you don't need merits proof to get a class certified in the t c p a context the case law has very out well general class action case law says the certification determination is often wrapped up in certain merits issues and the court is permitted to look at the merits to the extent that's primitive to but it also the i mean for a long time the rule said you had to have to do class certification first and that was often honored in the breach and that's when the rule changed but but i didn't go back to two failing to see but i'm certainly willing to be convinced and in an ordinar default judgment usually even just entering into fall snaps people right to attention you know because all the sudden they are facing very serious consequences unfortunately in a t c p individual action the most consequence facing is a minimum of five hundred dollars statutory liability in a maximum of fifteen hundred right but you're here and there were several hundred thousand dollars in the hole if i remember correctly right i apologise social that the other defendants in the whole didn't truthfully testify about it that they didn't record that authority in any email and your honor i try place my answer in the context of the question i i think our position was that this entire interaction but for certain bilateral emails and then certainly internal e mails was predicated on multiple or communications jones presumably was involved in all of them but on the darden side there was a division of participation and involvement between bought moment and sanchez with in fact bought the only employee we were allowed to depose have private judge ruffner has said what would you have gained basically by getting the testimony of these other two and she suggested maybe would you have gained further insight into the question whether the use of the logo was authorized a very fair question we would have definitely gain further insight into that they're not our decision to authorize though they're down the totem pole who's down right  authority than bought that they could not have expressed an authorization to a third party who then acted on that authorization for which dardenne could then be held liable to question of a parent agency of parents already but did you ever talk to ms moment more communication with her no you trying to we did not under the circumstances because there is individual civil liability for corporate officers under the t c p who directly participated or personally authorized so we did not feel that would be appropriate in this circumstance she was a we did not feel that was an appropriate move was the person was a party to the final marketing conversations how you you know so much speculation here on your part  if i may on the issue of whether it's speculation i would draw the court's attention to the root d c decision which judge would authored and the standard is whether deposing the witness with a known and demonstrated personal involvement in the relevant nucleus of operative facts would quote unquote aid in the exploration of a tiriel issue but there's a lot of district court discretion that goes along with all of this i would say anyway what i wanted to wrap up and you can save a little thank your honor can we would suggest that the operative effect of the district court's ruling in prohibition on us to posing moama sanchez was that we were bound as a matter of law to the recollections of jones when there were two other participants with personal knowledge and participation and then your honour's on the issue of whether notwithstanding that evidentiary issue we still should give overcome summary judgment the district court relied on pal go and bridge for you to set a vicarious liability agency standard in both of those cases they went to trial and determination on the merits taking cases on the merits and turning them into a good afternoon judge judge wouldn't that hamilton it's a pleasure to be in front of all of you again i think judge hamilton hit the nail on the head this seems to be a much ado about nothing i watched all the arguments today and i heard mr stein say in this first argument  this was a very interesting case i hate i hate to report i don't believe this one is very interesting at all the issue specifically is whether or not folks on the server in one first because that seems to be a very high boredom but perhaps not to pete i don't know the it seems as if counsel has forgotten that mr that they took the depositions of two corporate witnesses for social wellness both of whom testified very clearly that they did not discuss faxing ever testify very clearly that they didn't receive authorization for the logo rather they took it from an online website and downloaded it and used  it without the knowledge of darden so i don't know exactly what they thought they were going to get i don't think it's speculation to take it a step further i think it's very clear from the record that there was absolutely no authorization and so there's actually nothing that could have come out of that discovery  shall found that would have moved the ball forward so and so you're saying basically mean clearly sometimes people don't initially get permission to depose certain witnesses but they can show that the witness would fill an important gap was entitle to decide without knowing that that possibility was there that there was that there was nothing they could that basically sanchez is lower down the totem pole he's talking about you know press this button an order from olive garden or whatever saying something like that you know i think it starts earlier which i think is what judge hamilton mentioned which is that you know we start with this arbitrary and actual substantial prejudiced standard that the district court judge has absolute control of their docket and you need an abuse of that discretion so i think you start with that that color and i would agree with you your honor record that show that there was a standard procedure by darden that you had a fall out a contract to get authorization by vice president dick cetera so not only did i take it there isn't really any evidence that darden has ever told somebody we're giving you permission to use the olive garden logo go out and pull it off and but for the sequencing issues i would think it would be pretty tough for a district judge to sit to say you get these three depositions but not these two others of people with firsthand knowledge of the of the of the events i mean the difference between three and five years is modest and that would seem to you you're not you're not stuck with the with the testimony of the first two or three people to testify on the question i would generally agree with that i think in the district court again using his discretion very clearly with what the evidence had procured so very clearly what the what i would call a lack of diligence in bringing the other defendants into this case was and made  decision after reviewing the document on the arguments presented by counsel that they had met their burden to show that these dock these depositions were necessary and i would submit as your honour's may know from the record when the for sanctions in this case because i do prefer i do believe this case was frivolous i think under the guiding case of bridgeview and paolo it is clear that there was no authority to first socialist to have done what it did it's clear also from the record that social misses not a one time player this is the third case i'm aware of that they've been sued for trademark infringement for doing exactly what they did in fact darden as you all may know that was sued social on this for trademark infringement and was successful in getting default judgment against them which i would also seem it is evidence that they had no authority to what they did since that's a ruling of the court below so all that evidence e talked a moment on their own they could have i mean you don't you didn't have an attorney client relationship with her i don't know if i would have asserted that but they never asked me she was a departed employee under my understanding of seven circuit law it's probably qu sure she would have fallen and mr cohen mentioned officer liability and i don't think she falls within that i think she's probably about seven levels below what officer liability would arise in this case so short answer yes ron i believe they could have done it what i would have done below ha they asked me is a question i can't answer because i just hadn't put much thought into it and i guess absolutely could i will close with that i think and i mentioned it briefly but i believe that the how the decisions and this is the preview decisions have not those decisions are very clear that paste the two thousand and six amendments and tell though that under both the on behalf of or advertising there is a requirement that there is an agency and also that the must be undertaken it isn't limited to at trial doctrine of corporate officer liability the use of the term corporate officers somewhat of a misnomer it's the concept that people within a corporation it whatever level should not be held liable for the acts of the corporation unless they actually directly participated or personally authorized the actions goes all the way down to a truck driver when you sue the company for what the truck driver did and you can sue the truck driver to you can sue the president just because he's the president less he personally participated or personally authorized the actions so moment sanchez if they authorized jones did social wellness they could have been helped last reason is there other than just sort of speculation on your part that they didn't that judge is it doesn't seem to fit with the corporate plan local authorisation does i don't see anything else corroborative of the notion that they might have done that you could always guess you know maybe somebody did this but wasn't the district judge within his rights to say it's just too speculative judge the only thing i would say is that in my vast years of t c p class action experience a large corporation deviating from its traditional internal norms and protocols to foist upon itself huge t c p a liability for what somebody did in the company and shouldn't have done it's commonplace it has been the touchstone and if we weren't entitle to depose the people who were involved and who had personal knowledge we would never in fact be able to prove they deviated from their protocols ok thank