base eighteen das three four zero six and eighteen dash three four zero seven evanston insurance company person certified steel status thirty ation think argument not to exceed twenty minutes per side with ten minutes for each  we are the appellant in thirty four zero six we were the defendant in the district court we are appealing a summary judgment in favor plaintiff evanston insurance company the issue in this case concerns whether of liability insurance practices act slash unfair competition the state court treated that as a single claim defamation product a spiritual civil conspiracy this all rose out of some publications that the c s a and some of his member companies had made about some clerk jeter products evanston the insurance company had three theories as to why there was no coverage however the district court based its decision on one of them that the fraudulent or criminal act omission crucial injury or publisher's liability the district court went through and said well on the substantive claims in the state court act  competition defamation disparagement this wouldn't necessarily exclude coverage however the district court looked at the civil conspiracy claim and determined that because the jury was required to find with this situation the question really becomes what is the meaning of that exclusion it's not defined and what's the meaning of dishonest it's not defined in the policy ohio law which is what this case was decided  so this is that doc action and am i right that the coverage is sick is that three million dollars that we're talking about this is the max that is relevant to this dispute or what is it well there is there is some question about that but frankly was not resolved lawyer on or is it three million and the aggregate limit is a or is it a million under the proclaimed limit but there's another factor than hers in there is that this was a what i've always been told you call a wasting policy in other words the money spent on defense by the insurer is applied against the monetary limit of coverage and the insurer did provide a defense in the state court action so i do not know the exact number but the reason i ask the question is just making sure we're deciding no more than we have to decide in this case so from your perspective you don't want the verdict of a stand i assume i think you need help  what what's the narrowest part of the victory that we have to consider from your perspective from from my perspective your honor the narrowest path to victory is to simply say that we don't because you only thing we have about the conduct that the c s a say was held liable for which is what you would look at to determine whether or not this policy exclusion applies the only thing we have is the jury's verdict from butler county the jury's answer skinner aga tory's and the trial court's instructions to the juries telling them what they needed to find to get to that verdict all of those things if you read them in there in the record allow the jury to get to where it got to based on alternative findings they could have found knowledge of falsity they could have found reckless disregard defined in the instructions as publication while you entertain serious doubt which is certainly something less than yes your honor they did find there was a civil conspiracy but remember under the instructions that the jury was given in butler county all they had to find for purposes of civil conspiracy was a quote malicious combination which was defined as an act the intention to do a wrongful act the wrongful acts were the unfair competition the defamation the product disparagement any of those well the excuse or the unfair competition instructions didn't report to the jury make any findings about the mental state of the c s a with regard to the truth or for which a punchline on this point to punch line that no one knows so we're going to what have new interactive tours for that jury are we going to have a new trial or what do we punch line your honor is that we don't know this was a summary judgment the record is not sufficient to say that how do you how do you anticipate learning this given that the case is over  applied you certainly can't say that isis so your punch line is if you don't know you when you know i mean this is summary judgment they have to show that there's no genuine issue material fact and they're entirely just but but that's where you now you confuse it again for me do you when it's a matter of law or do you say oh it's it's summary judgment so you make it sound like we're going to send it back to judge bear and do some more fact development is that what you're implying that is a possibility your honor i what with the fact i don't understand what that fact development would look like what more is there to gather other than talking at the jurors themselves what more is there to gather other than the instructions in the verdict in truth your honor there at this point there isn't anything more together so if you believe the court could say that as a matter of law this record is inadequate and the insurer loses i didn't think give us any other possibility i mean i didn't i didn't feel like the summary judgment standard had was needed i don't think was here there had standing anything you do with the case at this point well as i don't see a fact trial going forward i think its role that your honor in the sense that if we don't know whether or not the record doesn't permit us to determine whether or not the particular governing standard was met here whether or not this exclusion applies then summary judgment becomes the default who wins who loses rule principle and at that point who had the burden of proof in the case c s a did not the insurer did so if the insurer has not put forth a sufficient record to say yeah the solution applause and that record we do not have that record because we don't know specifically what the jury found the why about send it back to the district court to have a pounding it about a quarter yury this issue if you say some adjustment was improper that's what has to be decided it was a dishonest opera and i think this court could do that i don't think it's necessary because i don't think i'd ask it i don't think this could do that i have no reason to believe that this could be any more information come into this record but this record i respectfully submit is inadequate to support the decision that this policy does not cover and i see in your main your main point on that front is just because you are a false statement intentionally doesn't mean you are intentional last to do it's falsity is that burning down your point not quite your honor the you intentionally utter statement is dishonest if you if you know that statement false but if you are careless reckless in this instance about whether or not this statement is true or false which is a finding that the stake or a jury could have made under these instructions then that's not dishonest dishonest the definitions and we cite in the brief it's a disposition to lie cheat steal that connotes a conscious sort of malicious wrongdoing that this jury in butler county did not have to find to render its verdict and if you're talking about all the counts yes your honor that is or that there was nothing in the instructions on an unfair competition to require them to find anything about the c concluded that publication was made while the c s is a entertain serious doubts as the phrase means direction that's not that's not dishonest and then your construction of the verdict on the conspiracy count is that the jury only needed to find that they intentionally did the wrongful act the wrongful act being publishing something while you entertain serious doubts about his truthfulness that doesn't get you to dishonesty and a just and i am a times lupo point remember we're talking about insurance policy and the rule on exclusions and insurance policies are you only apply the exclusion if it clearly applause and we got that all right thank you thank you owners please the court my name is anthony cillo and i represent the appellate clerk western dietrich building systems and like to begin by responding to the question what is the narrow with the narrowest path for a decision and i submit the narrowest path the claim the damages awarded on that claim where three point five million dollars whether or not you applied the one million dollars per claim limit or the three million dollar aggregate limit a finding for coverage on p claim would exhaust the policy so the only thing that really matters is whether or not the damages awarded on the o d t claim are covered by insurance now i submit to you that if that were the only verdict rendered by the jury it clearly would be covered so thank you for that clarifying point are you with your friend on your side of the case when it comes to the summary judgment point and his you know he made the point that candidly which was helpful that they didn't move for summary judgment so now i'm understanding why he's not asking for a ruling as a matter of law and where are you on that point we did move for summary judgment we moved for a guy essentially a declaration that this exclusion does not bar coverage for the owed d t p a client and the reason we made that argument your honor is because you can't tell from the jury in a rocket tori's what wrongful acts were used by the jury for each of the four verdicts and i submit to you if you can't make that determination there's no basis to take the civil conspiracy verdict and impute some kind of an intent back to the o d t the basis that they claim is the underlying acts which were necessary for the conclusion that there was a conspiracy were themselves the ats that you now relying on so if it tells us more then the verdict on those counts that but that cannot be the case your honor because as a result of the trial court's instruction in the disparagement case that the jury could not award duplicate damages by virtue of that instruction which the jury is presumed to followed each damage award had to have been based on different false statements and different conduct an example would show this past year or the c s s a publication which was the only thing that the first three claims were based on contained nine or ten different statements that we allege to be false the jury could have determined that any one of those statements gave rise to the oed the t p a verdict then the jury considered defamation in the jury awarded actually ten million dollars which was reduced for that one false statement then the jury goes to defamation that the jury found again that there was a liability that had to amend based on one of the other nine statements because they couldn't the jury couldn't award duplicate damages same thing for the third cause of action then we get to the civil conspiracy civil conspiracies radically different for one reason the jury was allowed to consider two other publications one was a tech note i want to ask you a question related to that because i confused by it i don't understand how this works you have you introduce two other publications into the instruction and the jury's told consider those all three and consider all of the original defendants and and then they're given the conspiracy instruction but they identify the first three counts as the underlying at timothy's so how how could it possibly be related to one of those other publications here is the reason you're there is the distinction between the underlying wrongful acts each individual false statement and the tort liability which attaches to them the only thing the jury determined on the first three causes of action was that there was some kind of a wrongful act we don't know what it is because the jury didn't tell us which gave them kind of what wrongful act which gave rise to o d t ph liability defamation liability and common law disparagement liability we don't know which of the nine statements the jury relied on for those three findings then they go to set it back down and let a jury determine that or the court if you want to call because your honor the burden of proving the applicability of the exclusion was on the insurance company we moved for across summary judgment because across move for summ judgment because they failed to meet their burden if you conclude that you cannot tell from the jury in iraq the tories what underlying role of wrongful acts were involved they simply have failed to meet their burden that's that that was a decision they made they decided to rely exclusively on the jury in iraq the tories if the jury in are all good tories does do not get them there they flat out lose and the case should be remain ended with that instruction the judgment be entered in favor of clark dietrich and that the court decide what amount of damages should be awarded to get back to see your double damages prohibition point i'm not sure i could i get either maybe i'm having the same problem judge white's having with it so i mean just think of one claim and then the conspiracy if you have an additional element dietrich by whatever false statement they determined to be actionable when you get to the civil conspiracy count they cannot use any part of that ten million for the civil conspiracy claims of the civil conspiracy claim had were based been based on something other then that's the case that said makes your point because it's use you have a lot of conviction saying it i have a lot of conviction in my head that it's wrong what's the race that the case that illustrates what you're saying is right th case that i will rely on most would be the lumbermen's case which says that what the district court needs to do is it needs to focus on each and every claim separately to determine whether or not there was coverage what the district court did here was it acknowledged that there would have been coverage for the first three damages award but it said that because there are civil conspiracy that vitiates coverage for all the other awards and here's the here's perhaps the best way to show these just just to make sure i'm getting this you think this is a better argument than the argument about recklessness for says knowing falsity it gets back to your point what is the clear what is the most narrowest past so vision and you're emphasizing this that's why i'm asking you why any of this is the better one this is the better one because if you conclude that you cannot use the civil conspiracy findings to a putative dishonesty to the o t t p a finding you don't even have to consider whether or not there was dishonest conduct in the civil conspiracy you don't get there because the never works i agree with my co counsel that dishonesty that given the instructions there was no dishonesty with respect to the civil conspiracy claim but i submit to the court it need not decide that case because the imputation itself was wrong the court sho conspiracy breteau that's what you're that's what i'm saying is that's why i started by saying it that had been the only verdict there would be coverage because the odp tito de t p a claim is a non intentional tort we have no obligation to prove ill will malice recklessness anything and it was no finding out that the jury made no finding of any kind of culpable mental state with respect to the o t t p a climb that's why i emphasize have to look at each one separately i'm sorry i have several questions for you  you you you need to establish certain things to establish each particular claim so you have a situation where you establish your first claim but then you decide for whatever reason you want for claims and the answers to the questions regarding those other claims give provide more information and some of the information that was provided had a higher standard of culpability and you're saying that you ignored that for the claim that doesn't require that culpability but if we know that the jury made a specific finding and it's the same acts that are leading to the liability i'm not sure how you carve that out now you in your brief i think you were trying to say that they really are different acts because the first count was about the product and the second count was about the company and i'm not sure where you put the third count so what my first question is i think that that was in the instruction but i  ask in you but then you get to the fourth count and you you still didn't answer my question about in your in your brief you you want to draw a distinction because there was another publication that was mentioned but i'm i do not see how that publication i don't understand that instruction i mean how do you bring that instruction in and then tell the jury that the only thing that they can rely on is the conduct in the first three counts here's how your honor the the tekno the other publication was always part of the case when we pleaded the case we allege that that two constituted a violation of the d t p a jury heard all kind of evidence throughout the trial that the tech note was actionable it contained false and misleading statement a week before the case goes to the jury all of the member but the jury heard about the tech note throughout the entire trial you can read that last civil conspiracy verdict as the jury determining that there was an unlawful conspiracy to publish the tech note which caused damages to clark beecher that's a rational interpretation we laid out in our brief all of the evidence that supports that the nineteen point five million awarded on the civil conspiracy count arguably was for future damages for that publication and how does that mess with the entire case that the that the false statements in the techno gave rise to defamation that gave rise to odp a violation and they gave rise to two common law unjust i'm sorry common law disparagement so again all the jury did was identify the legal theories it did not identify the underlying wrongful conduct which could have been the publication of the tech and that is that what it did i thought that the into rugged areas said that it was based on the conduct in in th the jury instruction was that the jury could consider the allegations in the three counts county but the counts were a bit at least initially including the technique and it said the jury could consider the claims well we had made claims all along that the tech note was a violation of the o t t p a and defamation and so what i'm submitting is that when the jury check the boxes that whatever wrongful act and again we don't know couldn't tell whether that was for apportioning damages or to determine liability but was there any discussion about classism sure yes what tellings insurers did telling insurers sought to intervene to ask specific in iraq a tories to prove their exclusions because arguably they recognise that the jury instructions in their present form would not get them there evanston made an affirmative decision not to do that they decided to put all put all their money all their chips into the pot on the existing jury in iraq of course they could have asked for well that's a characterization it isn't as it may be they didn't make any  did make a decision that there was deposition testimony that they knew that tellings insurers had intervened they thought about whether they should intervene and perp asked for instructions that would have proven the applicability of their exclusion but they decided not to do so they made an runs in the trial of this case and after hitting the home run and getting a great result on all counts that are trying for the jury clarke the church is now attempting to tell this court don't look at the home run any more just look at the  single we don't want you to consider the whole record clark the church would have this right there right about the stakes of this of this appeal they just about getting to three million no your honor and that will number one that decision was not reached by the by the trial court it's our position to make sure we're on the same page are our policy caps at roughly three million are probably as a per currency limit of one million and a three million dollar aggregate i got it our policy also has language that says all claims relating to the same act or series of acts will be considered one occurrence so it would be our position that irrespective the fact that we think the trucker granted the the right ruling the most at risk in our policy would be the one million dollars per limit which is a roaded by defense costs ok so that back to roughly three million roughly three million and i write about that that's why between one and three three million would be the aggregate one million dollars would be the per currents limit so i'm just trying to explain why they're going for a single and not a homerun hero when i say single your honor i'm talking about the fact that they tried to have this court only consider one verdict as it relates to the the ohio trade practices act they don't want this court to consider the talent of the findings on all the verdicts so why don't you start with the associations point that strikes me as the narrowest way to think about this at least initially and their point that judge barrett looked at the intent component of civil conspiracy yes and thought when you add that to the underlying counts yes that had to get you to dishonesty and they're making what seems like a fair point that and not necessarily so i will address that and conspiracy is actually a tool a tort that that takes place before the actual toward itself as the federal court held me in rewelding fumes case it reflects the meaning of the mines where the parties reach a unity of purpose and a common design or understanding such that it it preconceived plan as to perpetuate a tort so technically speaking the tort of civil conspiracy occurred before the c s a actually of coverage that would be a potentiality of there because defamation can be proved without actual intent the problem that the appellant's have in this case is number one the court looked at the underlying findings of the individual torts as it related to the act the jury made the determination to could have found a false statement and it could have found a misleading statement the jury found both a false statement in a misleading statement or those dishonest or they by finding a false statement the jury made the determination that with the statement was false on its face at the time it was made that alec out was that was on count one that was on the ohio to say deceptive trade practices act excuse me you said false honesty and also on its face on it at a time it was made but somebody could be wrong about the truth and that's not this is it and that's the that's the arguments that they're all that they are trying to have this court the trial there to be arguments it's the issue yeah the issue they're trying to say gauge the issue don't just give arguments absolutely and i apologize my of my point is your honor is that the nature of civil conspiracy a civil conspiracy is predicated on the fact that there's somebody perpetuated a wrongful act and the wrongful act was involved actual malice and the definition of match actual malice given to the jury on the civil conspiracy count was that it was a state of mind in which a person does a wrongful act intentionally without a reasonable or lawful excuse that causes injury that's what a jury had to find in order to determine that that a civil conspiracy all of those acts were the subject of the civil conspiracy that that finding on its face reflects that the jury concluded that there was a pre design plan by the c s s a and other coconspirators to perpetuate the acts of product disparagement defamation and so this predesigned plan i'm not sure i'm understanding the mileage you're trying to get out of that i know it's your big mileage i'm trying to get your honor is is simple is that in order to in order for the jury to find that all three of the underlying torts were part of the civil conspiracy by definition by by virtue of the jury instructions the jury had to determine that each of those underlying acts were perpetuated intentionally and the jury  false you can't make a statement that is not dishonest if you make that act without reasonable excuse or legal justification and that is part of the definition of civil conspiracy and how did was legal excuse justification defined to the jury yes and that was in the definition of civil conspiracy or that is part of the definition of actual and what is how is it defined legal excuse the definition is malice being the state of mind under which a person does a wrongful act intentionally without a reasonable or lawful excuse that causes injury and i'm asking you whether reasonable and lawful excuse was defined for the jury it was not your that specifically but one my point being your honor is that the definition of dishonesty that the court look to from the dictionary and the definition of dishonesty that the court look to look to from ohio law cannot cannot be cannot be reviewed from anything other than concluding that these acts the acts that were the underlying acts that were found to be part of the conspiracy that were found to have been intentionally perpetuated by the c s a without reasonable lawful excuse cannot be done and any mother mindstate then dishonest ohio law has does has a has equated the concept of dishonesty with a conscious wrongdoing ok with the conscious wrongdoing wrecked so if you if sometimes people get themselves into a frame of mind where they really believe something to be true and everybody around them can see that it's not true but they you know they  think it's true so if you have that situation which i mean this person i don't know who it is but was given a chance to get out of the lawsuit with no payment whatsoever but somehow believe you so much that the statements were true that he didn't take advantage of that opportunity well so if you have receiver that the it's a v it's a sham organization it is merely a vehicle by which these corporate members propecia perpetuated these intentional acts to harm party tricks that's the argument that was the pitch that they made before  the trial so this is not like the c s a is it individual that may have had different thoughts and to address your other point your honor as to why the see it why clarke the church or why the c s a decided to go forward with this case it's our position and belief is has convinced themselves that that this is true that there was something about the product that was deficient is your answer that it's an entity that doesn't have such thoughts is that what you're trying to say and i'm sorry to say that doesn't that seems like a really nice thing to say from your perspective but can't be reined by the answer is it was it was a it was a risk where they were risking nothing what did see what did the c s a have to gain with a verdict they could have gotten a verdict that would have determined that clark detroiters product was not code compliant what was the downside they had no assets the only asset was an insurance policy all the individuals defended said settle out and then so what about the point that in construing the word honesty movies have got two point one yes we have to read the exclusion narrowly but i'm going to the double point here is the policy is supposed to cover unfair competition defamation disparagement and you're pushing your definition of dishonesty to the point where you're asking you know you have to ask yourself is there a way to commit unfair competition defamation disparagement honestly the end you find yourself thinking what a beautiful policy issue you get pretty much with no risk absolute conspiracy not been part of this case we would be having a completely different argument but you can't undo what they've done and then also try to answer the question directly yes the question is you're deluding dishonesty and it's some point it gets you very close to the honest disparagement the honest and fair competition and we have to honor of those there has to be a gap between those or this is a ridiculous policy and it is i would try to address your point directly or this policy provides various types of coverage my point is when we look at the verdict we have to look at the to tell you of all the factual determinations by this jury one of the determinations that the jury made the one that they're all trying to distance themselves from was that the c s a did all of the underlying acts which they were found  performed and they did it intentionally and they not only did they intentionally perform the wrongful act but they did it without reasonable excuse or justification my point is one cannot act intentionally to perpetuate a wrongful act knowing knowing that the wrongful act was in the furtherance of a conspiracy knowing that the wrongful act would ultimately harm the other party a person cannot do that without knowledge that it is a dishonest act and there was no reasonable just a for reasonable or legal justification for this act my point is but why i can you answer my question yes before it's related to this how is how is it how do you have to have dishonest frame of mind to do that i mean you're just you're intentionally making these statements you're making them knowing that there's going to be a consequence for the subject of the statements and all of you agree to do this so it's definitely a plan with intent because but you also believe mistakenly because in looking at the determinations on some of the underlying counts the german the jury determined on the ohio deceptive trade practices act that the statement was made falsely and it was false of the time it was had and the jury determined with respect to the the discoverers al all of these claims all these findings become part of the conspiracy all these findings are determined to have been performed intentionally not only intentionally but also performed without legal or justifiable excuse the talent of this gave the trial court a sufficient basis to determine the dishonesty exclusion and it's also important to recognize one of the dishonesty exclusion applies to all claims arising out of or part of this honest to talk about hypotheticals that deal with the terms of a defeat but what would happen if the other side is right so focus on the associations argument they say we didn't know for summary judgment the question here is whether my friends on the other side deserved summary judgment and then this leads to the question ok wait maybe there really is a tribal issue fact is there tribal issue fact in this case or would you concede that one side or the other has to win as a matter of law because we're not go have a queer not going to reseat the jurors and have some discovery as to what they really man up in a different jury could make that same determination so what you have a new jury trial about redo the jury trial to see what you would find back to the point you think there should be a new jury trial as to whether they were they were they would have found dishonesty with i don't think serving in the in the in the jury very different closes us from having the opportunity to do so if this if this court were to ready and the f d i c case that we pointed to this court i think is a very important case this court to consider in that case the party tried a legal malpractise clase and a breach of duty of future duty case and when it came to the coverage case after they want to both counts they said well there's coverage in the legal malpractise case and the fifth circuit said you can't unring the bell you can't an write what you did you chose to pursue both claims in front of this jury when the jury determined that there was a breach of the du fit within the dishonesty exclusion the policy you can't separate the claims of for coverage purposes you look at the the determinations made by the jury such your answer to clark dietrich said double damages  point if the damage you know that's again i would submit it's a it's a misconception of what civil conspiracy is the jury made the determination of damages on all three counts and i agree the clock teachers the damages were separated out the jury determined that clark teachers was responsible for fifteen percent of one one of the towards and thirty five percent of the two other torts so conspiracy does not give rise to new damages it doesn't it's not additional damages what civil conspiracy does is it makes coconspirators responsible for the proportionate share of the other coconspirators so what the jury did was when it found civil conspiracy it held the c s a a liable for the full amount of damages for all the torts that it found against the c s a that's what that's what the determination was at the end of the day it doesn't make a difference as to what the jury found as to each of the underlying cases and why doesn't it make a acts were part of the conspiracy the jury determined that whatever whatever found as it relates to defamation ohio trade practices product disparagement whatever it determined that was a subject of the conspiracy it found all three and it found and because it found all three the jury logically concluded that the c s a intentionally committed all those wrong flacks and with a tally of those findings with the findings as it relates to the underlying individual acts including the finding the product spirits may claim that it was done with knowledge of falsity or knowledge of probability of falsity that was a determination the jury made you because you both had different explanations for the verdict on the civil the trade practices act it found that the c s a was thirty five percent responsible so they were responsible for thirty three point five million the jury found ten million dollars in defamation they found the c s a was thirty five percent responsible so that was another three and a half responsible for eleven point five million dollars on the civil conspiracy the jury determined that this is a was responsible for nineteen point five million dollars yeah one thousand point five million dollars plus eleven point five you get the thirty  first if i could just answer judge filers question i'm pretty sure this is in the record in this case the c s s a is a delaware not for profit corporation your honor the civil conspiracy doesn't do all the work that evanston wants it to do and you can look at the instruction whatever the was in civil conspiracy i submit is not relevant here because what's relevant is what was the jury in butler county instructed and what were they deciding the instructions are real simple i'm going to read it the jury had to find that defendant c s a say participated in a malicious combination involving two or more persons including the defendant a result of which was the commission of a wrongful act that caused injury played if you go over in the pool to find malice as the state of mind under which a person does a wrongful act intentionally without a reasonable or lawful excuse to cause dishonesty here you've got to look at the underlying wrongful acts to get to dishonesty no with all due respect to mr may she said that the jury had to find probability well that's not what they were on the  claims that's not what they were told reckless disregard was that was part of it but the the instruction or reckless disregard goes on to say that the jury could find reckless disregard or it t c s is a entertain serious doubts as to the truth of the statement that is i respectfully submit not dishonest conduct is culpably bad judgment but it's not the kind of willful misrepresentation we give the concept of dishonesty again this is an insurance policy if the intention of the policy and just shouldn't raise a good question of how would this how would this what with this policy cover but if the intention in the exclusion was to eliminate intentional conduct or reckless conduct those are common terms they should've said the phrase dishonest deliberately faults the deliberately fraudulent excuse me or criminal is an impermissibly indirect honour's very briefly your honour's on the on the double damages point you just heard a calculation of nineteen point five million dollars which would violate the prohibition on awarding duplicate damages because what you heard is that the jury awarded thirty million dollars they subtract that out nineteen point five under this allocation theory and then they were real warded the one thousand point five under civil conspiracy they were not permitted to do that so you have to find a different reason a different basis for the nineteen point five in our brief we suggested that it was for future damages because we had an expert that precisely picked that number caused by statements made in the tech and so all of that flows consistently on the point of dishonesty race correct the instruction word was that the jury had to find that there was an intentional act that was it it was just an intentional act no culpable mental state at all in order for the civil conspiracy to do a rise not every intentional act is dishonest and not every intentional act can bar insurance cover you kind of just one really quick question which may be my colleagues have asked and i just didn't appreciate the question or the answer but if this case  only been about i don't care which one it is but you say unfair competition just to pick one of them and the same double damages prohibition was in the instructions and you had one cow unfair competition count t conspiracy to commit unfair competition with the double damages probation and prohibited separate damages for the civil excuse me the conspiracy part of an unfair competition just yes or no and then if you want to qualify or explain that yes or no question i think the user regime has to because the way you it would prohibit it so you've got one cow unfair competition second count conspiracy to commit unfair competition and the exact same double damages prohibition instruction as we have here you're  with respect to some questions judge about the tech know how that could be a basis for liability when the trial court entered the a directed verdict prohibiting us to have to make that claim against just the c s s a the trial court said that in terms of the motion for directed verdict as to the tech note in another publication the court is going to grant a directed verdict to the defendants with respect to all causes of action with the exception of the civil conspiracy consistent with the discussion that we were permitted to argue to the juror so i don't i always tell my students of public advocacy that the best way to start a point is by referring to something a judge has said because then you're forcing the other judges to interrupt a colleague as opposed to you it's brilliant but you had ten minutes extra before and your excellent advocacy is not going all out to keep going to suck thank you very much and but you know if you have a question yes that's great go ahead and finish answering you i think you were addressing the question of my i think what i was saying is so that the trial court permitted us to argue to the jury that the civil conspiracy could be based on the publication of the techno and if that's what the jury said that was completely different than the damages awarded on the other three counts because they were limited to statements in c s s a publication that's how i get to this verdict as being well you just simply can't thank you for your indulgence your head start if you for your excellent