selling the products in question we did that quickly tried in a quick settlement which had a very beneficial effect of getting the the informer szell's off the air stopping the continuing consumer harm that was going on at that point we were still investigating the roles of the other people in the involved and people who were involved sentry an ad agency and an endorser and we didn't know at that point all the facts about those people's activities but we continue quite quickly now with the district court did use at the used previously in a way that really is contrary to basic principles what the district courts relied on was just a mere fact of us were parties that acted together to bring about a result and we certainly admit the fact that we we advocate that they they didn't work closely together but this really makes them no more than joint forces or in the general rule remains that if you know people collaborate on a tort you can sue them one of the time if two people collaborate on an article does the same  me i can sue them i don't have to do it all at once to tell you that my going to have to tell you what my issue is pregnant what you said makes sense but i think that the district court relied with respect to modern interactive on more than the fact that they were joint tortfeasor so in acting i gather my question is this is that you have your first major settlement and you have a settlement document that fin sixty five and injunctions and my question is what is the meaning of that settlement for example if modern interactivity gone out and put out some more exercise in a bottle a as i read the settlement agreement but then that wasn't their role in this relationship why isn't their role in acting in concert with informa why are they in fridley with them is wrong with respect to privity and now modern interactive is on the hook for your allegations in that essentially informant standing in the shoes of minor interactive that you're fighting once again because substantiation may have the our whole point of unsequenced gets into the indorser standard is that our notion in of course the course of recognize for decades that it's not just a scholar of the product that can be held liable there are many ad agencies case not as no the order was negotiated with the informed ascendance and as we point out you know we told them you know that we are still looking at other people who are involved in these these actions and we realize that you have investigation agreements with people and you know we are so we're going to continue to investigate such other persons now but let me ask you about that i know you wouldn't agree that the consent decree and these parties the only other relief realistically that the federal trade commission could take is a very kind of relief we're talking about here with these against other people so yes i really only go to crawl evidence if it's something and the duty there are but we think the riemann itself so other endorsements for other people and that's been that's that in itself is another reason why the planes are different here because from both modern interactive and garney i we could see further relief of the sort that we never had the opportunity to do because we didn't sue them we were still the overall message of this is quite clear you can eat what you want and in the on that image evolving himself specifically made several representations that go to weight maintenance and this of course is what is it that she claims in diet product advertising if you look at the the extremely meager substantiation that mr gardner says he has you will not find an iota of support for any and indeed maintenance plans which are a very important part of the claims that were made during these informer fals  seems to knowledge that but it certainly is no proof for weight maintenance and just because you use a product of three weeks and you lose a few pounds tells you nothing about how people will ongoing weight problems which are of obviously the target audience for this advertisement how they will ever be able to get any sort of long term benefit from from the product there were no scientific studies done as to garvey in the admissions that you'll see in the pretrial order admitted that he was unaware of any scientific studies on news products  professional baseball player who talks about the importance of fitness and they have these very positively you know sort of pseudo science theories about how this stuff might work with no real proof behind i mean this is just this is make all your honour's and and we think it's important we should important presence really will we think that someone is the guardians we're not asking mr garvie to be a scientist we understand that he's a ballplayer but he's certainly an intelligent layman who's done well in business he can look at some material before under the guidelines because contrary to the supposition of defendant's expert the guidelines specifically say that you are indoors or if you're if you say you're expressing your personal beliefs you don't have to be an expert you don't have to use or and  persuaded by the end of the half hour after speaking with a nutritionist and watching the and watching the evidence that's presented in the in the course of the infomercial when the first place is persuaded by the end of the half hour and in the second place even a viewer of any speaking we're not speaking from him to make consumers whole we're just saying he made a million he and his company made a million dollars off of this indorsement one percent of the gross ricin that money should be this war is to give it to consumers if we can to support them if we him if you look at the date the argument by my marianna colleague here that the only possible notice that we could be getting is that modern media was a potential target is flatly wrong  that is not supported by the record and frankly for me to go into the other targets would be out there i'd be outside the record as well as i can represent to the court that there were a bunch of people selling this product on the internet honor it was not the primary subject of discussion the primary subject was frankly the money and the ten million dollars that was required to be paid was very very substantial it was not clear until late in the game that the money could be put together and that sort of thing and that was the primary subject of concern we think that the need to create which was essentially presented by the federal trade commission almost on a take it or leave it basis is did you interactive it seems to me that one of the real issues here has to do with the identity of the claims because it would be entirely conceivable that you would have a primary target of an f t c investigation that would get shut down but that an advertising agency or other collateral might not actually be on the hook for any kind of fines or injunction because of the knowledge issue and there's a range of knowledge and participation that they might have how do you respond to the argument that the f t c is right that actually these crimes are not used in several of the of the cases it is impossible to lay the complaint in the form of action which is in the record alongside the complaint against the guardian modern media defendants without being struck the absolute her alone symmetry of the allegations in the two there are no fair reader could take a look at those two complaints without being struck by the fact that there was heavy reliance on what was already on the  because what they were were common creators of a a document that is the script or ultimately the television commercial which gave rise to the f t c claim after all the essence of the f practical matter i'm trying to figure out the legal significance of that you could say well that seems a little unfair because we're on the hook twice where we already settled with these guys amount of back at us and we're the ones that are that's so i understand totally the items on such a checklist would be an indemnity or indemnity relationship it is not certainly actually even something the judge feels particularly relied on it is however something that the cases do point out as a must prove actual knowledge of material misrepresentations reckless indifference to the truth or falsity of such misrepresentations or an awareness of a high probability of fraud along with an intentional avoidance of the truth now that is actually from their briefs and we quoted from our break we agreed that that is the appropriate standard we think that this is a standard that absolutely reeks of factual determinations and we believe the judge faeces findings based on what garvey did that he either matter didn't meet that standard is it is a finding that is not clearly erroneous the the that that is standard that should apply here it really comes down to the question of what should a spokes person do and what judge these found boiled down says garvey he wanted to make sure he was doing the right thing that's why i took the product that's why is life kept the product they had results could he have gone out and and hired a scientist or something like that could he have posed for that perhaps he could have perhaps if it was tiger woods these days with a legion of lawyers perhaps he would have been able to but it was appropriate in terms of guidelines first the commission itself realizes that these are guidelines they are not and in fact the rules if i would characterize this as an effort by the commission to have the force of distinguished from the advertisers and i suggest that looking at this and judged around it looking at those guarding was clearly not giving an it was separate from the advertiser he was playing a role he was there he was the interrogator he was the questioner interrogator sounds a little too formal but he was asking the question like the work r work for you to tiger woods with a golf club i mean hitting it longer and straight that's the essence of an endorsement with garvie you've got somebody who has tried the product why to make believes you know these are his personal views and opinions about this product in his white had used it to some degree but then the question is the question one what level substantiation or support does he have to have in an believe what they say getting there and what the interesting thing is when you read those guidelines it is never clear that the guidelines are intended to apply to an endorser as opposed to the advertiser who is using and indorsement in its advertising and i'm not here to argue that it wouldn't apply to an endorser but but when you look at that statement the guidelines are clearly intended to apply to the advertisers and they use them against advertisers all the time it is the application of these to the endorser that is unique in this case quickly on the first point i want to point out that it's all well and good for modern interactive say post facto though we would have paid part of the ten million dollars or we even did pay a small part of million dollars but they're asking for a rule of law here and i think that i just say that to adopt a rule of law that would make someone thank you for the arguments they were both very helpful tha