may please the court my name is dan cohen i represent the appellant tell the sign to display company we've raised two issues in this appeal from an adverse judgment in a telephone consumer protection that would be helpful i would not appreciate that we have filed a letter of supplemental already under rule twenty eight notifying this court and this panel of three and i haven't gotten it yet i mean i have received right here and i was going to ask you the same question i believe that was filed yesterday i think it's just not distributed and what we did we brought the bridgeview decision to the attention of the court we pointed out that prior to the bridge view panel decision the circuits that had considered the issue and the f c c were in alignment that common law principles of agency would not the governor limit or be the touchstone for t c p a sender liability and that the bridgeview panel decision seemed to be inconsistent or irreconcilable with that other circuit court an f c c authority but i think what the bridge view panel was saying i guess it was resisting the idea that this is a binary choice either common law agency governs one hundred percent or it's utterly irrelevant and it said neither one of those is true but instead you know certainly if the common law agency satisfied then you have something that you can easily work with and then there are broader definitions independent contractors for example who are not necessarily common law agents so you could go beyond that but they reject the idea that agency law has nothing to do with what we're talking about and they also reject and i believe this is consistent with what some other courts have said the notion that there's strict liability that that there would be liability for a company whose goods were advertised by a blast fax if the company had no idea that the sender was sending these facts out will i perceive two different points you address them both the first i don't want to presume to speak for the subject content of the members of the panel in bridge view but i'm constrained to the words in the opinion and it like we hold that agency rules are perfectly applied to determine what their inaction is done on behalf of a principle yes and then proceeding to analyze the plaintiff's evidence through the lens of three different types of recognized common law agency finding plaintiff did not meet any of those three quality standards and finding therefore that the trial court was justified in reaching its ruling there was no discussion of some possible broader elements or broader ways under which a t c p a plaintiff could prevail and so to the extent your honor suggested that there's a middle ground in the bridge few decision i did not see that in its text well in the application to the independent contractors i mean i have this in front of me as well liability outcome will because the one thing that is clear from the facts of bridge view is that mr clarke seems to have authorized facts ads within the twenty miles around terre haute but not the rest of them that were beyond that so he's held liable for the ones that he that he authorized but not the others and one of the positions taken in bridge view case was that a principal is liable to third parties who were innocent and were harmed by the principal's agent even when the agent did so in violation of specific or secret instructions provided by the principle that but seven circuit law that's us supreme court law that if you're a principle you hire an agent to do something and you give specific instructions including limiting instructions and your ag different wrinkle altogether because there's a whole question about whether mr wagner and the company were even and gauging fee to here for whether you know what would whichever entity it was and particular i find it particularly telling that the jury seems to accept his testimony that he wanted to look at the list or maybe he wants to look at the list for purposes of compliance with the statute maybe he wants to see who on the list he has the kind of preexisting relationship that the statute says it's ok i mean there are all kinds of things that he wants to review the list and the jury makes finding that don't favor you on that well there was no evidence in the record at the trial that he wanted to review the list to find out or confirm it would have established but also i understand that but he but there was testimony the blunted to review the list and he wanted to review the file copy that is corrected and the jury apparently buys that under the court's instruction as to what our standard of proof would be sender the broadcaster you make under the governing f c c regulations you can hold the facts broadcaster liable only where you can demonstrate a high degree of involvement and then the f c c is given some indications of what high degree of invite if if the facts the facts broadcaster makes the decision to send faxes without the approval of th because you're always going to be going by what the f c c has said which is that the libel sender is either the party whose goods or services are advertised in the facts and or the party on whose behalf the faxes were broadcast but that's to the first part that you articulated even if it's in a regulation which i believe it is seems to me to be a strict liability standard i could cruise around the internet the say afternoon find a company that's offering a product that i like maybe they maybe they make very clever cat toys and i think gee i really like this company you know maybe i'll just send around a whole bunch of faxes to people  buy cat happy toys and the company doesn't know that i've done that but i've referred to it maybe i photocopy a picture of some of the toys it's clearly their goods or services are you saying that they're liable for what i decided to nothing then why not i believe the distinction is that in the scenario you just described the party whose goods or services are advertised did nothing they took no action but it doesn't say that in the regulations it just says the party has goods or services or advertising you're adding to it and did nothing well in that the reason i'm adding that is because to allow liability in a situation where the party defendant did nothing and no ahead there isn't that wouldn't that create liability on his part there were two streams of evidence there's all the documentary and i just answered my question wouldn't that wouldn't that make him liable broadcaster decides to send the faxes without the approval of his client can you class action plaintiffs can't can't they sue that define through their implementing rules and regulations they define the standard by which the liability is going to attach and if i may circling back to what i think may have been the most focused question on what are challenges to the court's instruction given we don't believe that strict liability where if your goods are involved your services are advertised you're liable no matter what even if you had nothing to do with it the question is what is the standard and we believe the courts use of an authorized which if defined in the language of common law implied in express agency was exactly what the f c c and its serious letter said is not right it's what the eleventh circuit and sarah said is not right and  we would propose that the appropriate balance between strict liability which would deprive defendant parties of due process and the liability that serves the remedial purpose of the statute would be a blot for how the strict liability deprive a person of process in the courts hypothesis or hypothetical of a scenario in which the party advertised in the facts had nothing to do with it they didn't know about it they didn't deal with the broadcaster somebody friendly or nefarious malicious attempted to fax these things and make it look like it was theirs and under a federal statute this completely innocent defendant is going to be held liable to the tune of millions of dollars i think they would have a very good argument that that deprived them of procedural if not substantive due process why didn't the abraham testify she did by just a deposition she was she's across the country she was not traveling for anybody we went to new york to get her testimony you know if we assume for the sake of argument that the  allowing the diploma mill testimony why would that not earn not be harmless under federal civil procedure sixty one and other  or because the evidence the judge posner pointed to that supposedly could have allowed the jury to find in favor of the defendant all depended on the jury believing the defendant statement that he had private oral telephone communications with an agent of b to be an agent of carolyn abraham named kevin wilson and that they had a special side agreement that's not reflected in any of b to b s documents so you've got the documents which prove the case against the defendant you've got the defendant making a claim of oral communications that are otherwise unverified and unsupported and it becomes an issue are you going to believe the defendant or are you going to believe the legitimacy of the b b b documents and that was the focal fulcrum credibility issue in this case and if that evidence should not have come in about the diploma mill which destroyed not only carolyn abrahams credibility be the bees credibility but kevin wilson and agent of b to b that had nothing to do with the diploma mill and provide a basis for defense counsel to stand up in closing now you're saying that abraham her testimony should have been allowed in her testimony the testimony elicited by defense counsel about the fact that three or more years before an innocent and what's wrong with  prior bad acts to prove character to prove character and confess action in conformity with carry out how how is this presented to the jury that someone reading her testimony read her deposition test my recollection is that her else you're not giving the jury a good sense of what you know because because this is not the witness not the person so you think that the jury should be allowed to read the testimony and see what weight to give to this diploma mill stuff well i i not sure i understand the link between whether they should be able to read it or have it read to them well there's a big difference between reading something and having something read to you know i appreciated that distinction i don't see how that correlates to and they should be able to read the diploma mill testimony they should only be able to read it if it was ross a separate question the question is the way in which the abs witness testimony is given to a cure twenty five years i've never given the jury the transcript i've never seen it done where the jury's given the transcript to peruse over themselves i've seen a videotape played i've seen us put a witness in the stand and read as we did here a person to stand in lieu of the witness i've never seen that i've even seen juries are told they cannot have the testimony during deliberations when they say we'd like to see that deposition do stand they' held that have said they've said that giving them one piece of one witness's testimony to read again unduly in for sizes that testimony of the over the rest of the witnesses in the trial so they have to be governed by the recollection as to all witnesses live in deposition if it was admissible then it opened the door if it wasn't admissible then it didn't open the door and we contend it's not admissible as there's some response to the diploma mill i mean on its face it's not that actually one of the wives of my brother in law got a degree based on work experience in life experience now it's considered to be you know not not the same distinction as   green from harvard college or something but it was considered to be reputable the interesting thing about the i would mention a helpful to have some and explain something about these work experience life experience plumbers judge what significant about what you just said is that judge clark made the exact opposite observation the reason he felt this diploma mill should come in is because she used the word milk and he said that almost automatically mean she's acknowledging it was a fraud so while i appreciate the fact you know it is your irrational right that's incorrect so i was never above test my practice is not to double down on what i believe to be the prejudicial effect of a piece of testimony understand that all right thank you very much thank may please the court robber heist on behalf of wagner equities and daniel wagner actually your honour's plaintiff had the opportunity to call at trial live in person carolyn abraham to support their case or to respond to credibility issues arising out of her testimony that they made a choice not to call or plaintiff had the opportunity to call kevin wilson also known as conor melville as a witness in their case to refute the testimony live testimony of daniel wagner plaintiff chose not to do that there were ample opportunities for plaintiff to address these issues and they chose not to do it and judge starr was very considerate with respect to the diploma mill testimony as well as  comparison to other credibility attacking testimony that we wanted to admit it well now wait a minute though mr cohen said it's abraham did not live in the state or within the one hundred mile bulge so why under rule forty five are you saying that there was an opportunity to subpoena her for the trial if it wasn't willing to come well if she wasn't willing to come is a different she wasn't willing to i understand he said that but and that's the circumstance that allows you then to go to the other rules thirty thirty two setter and read the deposition and because she's on available for trial i don't disagree you know she says i don't feel like coming to chicago or wherever chicago fire a trial i agree if she didn't want to call she's not available which is why rule thirty two kicks in and so we kicked in and a deposition transcript was ferreted out in terms of what testimony was admissible what testimony was not admissible and so forth and my point is judge starr was very very considered and excluding some very specific testimony and allowing some specific testimony diploma mill testimony he made a very well reasoned conclusion that that testimony was very specific to her credibility and based on that he allowed that is wrong about that  but but there are there are these degrees and they have some ability to not this early frauds and i think that's the opportunity where planners counsel could have brought that out in deposition in testimony in advance set out and she the i mean i think the word mill is a pejorative word wraps i'm not sure you would call it a diploma mill if it was one of the it's more legitimate places that judge posner is talking about and that was of a phrase that came out of mouth absolutely your honor and i think judge clark rely heavily on that and in doing so allow that testimony to come in even if for some reason there's some indication that that was an  think the point was made earlier that that's a harmless error because it was it's eleven lines of deposition transcript held on with this trial this was two full days and there was not much time devoted to this diploma mill issue although it was highlighted in your closing argument with or without objection that is absolutely correct ron but there is no object that's correct your honor with first could we move to the the jury instruction what the jury instruction seems to do is equate the idea of authorization to the idea of being on behalf of someone and i'm not sure that's a good link so here's the example i thought of i'm my age on behalf of my four year old granddaughter you know buy tickets to the denver she wouldn't be authorizing me to do it or anything would just be me going out there buying tickets on her behalf to go to the zoo i may not even be going maybe her mother but taker but but so why does authorized pick up everything that on behalf of that there has to be some link to the statutory language on behalf of to some sort of consensus some core sort of agreement some what do you think if you had to stand here right now and define what is on behalf of the with the understanding and cooperation and agreement of why not bipartisan not just means for the benefit of to further the interests of big because it goes right to your example that i as a third party sender may think it's to somebody else's benefit for me to send out twenty thousand faxes advertising cats and the actual owner or business owner has no idea what i'm doing it so it's too subjective for me to make that determination of what i think might be in their best interests and i think that goes your own hearing a little to articulate assuming they're rational adults their i think direct would be too stringent i don't understand that's what you do you hire a fax broadcaster and you direct him you know he tells you i'm going to or senator one hundred people or something like that you say yes send it agree let's do that and if you do that here clearly the evidence did not support that kind of communication in this case so what you're actually saying i'm not sure that i'd use that word clearly but your position has to be that there was at least enough evidence before the jury that the jury rationally could decide that correct your honor and that what what judge starr did and i think what the bridge view court did is they found a balance by finding three avenues with respect to the express actual authority the implied actual forty and the apparent authority ok and the least stringent of those standards was the apparent authority and that's what the authorization component does so who have who does it have to be apparent to joe the outside world or does it have to be a pat i mean i always thought that to be honest you know somebody goes out and supposedly does something on my behalf and if they're th person that i've hired to be my personal factotum you know then even if they go beyond the scope of what i've said everybody says oh you know but x always works for diane you know she can do this too so that's the outside world the the rich you opinion says the principle misspeak right or otherwise act toward a third party must make the third party reasonably believe that the principle a should say has consented to an action done and well i think you're right on and in the sense that it is a very subjective book argument that b to be could say we thought but the bridge to court says no you have to have some factual support for that thinking that you had authority and that's where you have to look at the specific facts of the case and in that case they clearly recognized there was a twenty mile radius where there was a clear direction or authorization but outside of that there was not in this case if you apply that least range and standard look at the facts daniel wagner testified in person in front of the jury subject to cross examination that he expected to receive the the list for the very purpose of your honor identified he wanted to make sure that that list was going to people that he did business with because maybe he had a relationship with them or to make sure that it was limited to the people that were in the type of business that he was instructions right agreed and that was presented to the jury and it was very clearly articulated and explained that as soon as mr wagner found out that b to be sent this fax to twenty thousand they canceled the check because understanding was i have to send a check in order to see the list he said i want to see the list i want to see the ad i want to prove the ad here's my check hold it until we do all these things and they didn't do it they got a check and they'd send it out to twenty thousand people your honor our position is very clear and i think the timeliness of the bridge view opinion supports our case exactly that even if you apply the least stringent approach to a parent's authority the facts in this case don't give that authority to be to be there were three conditions that dan wagner expected to be met before anything was sent out that is review the list see the ad create the ad and approve yet none of that was done they got the check they distributed twenty thousand people have to be saying that this is the equivalent of my cat hypothetical that they just sort of went off and did it because they hadn't gotten the approval it is exactly that your honor and as soon as they realised that the action they took demonstrates that they were not authorizing this they stop payment on the check immediately and never paid and then could never hear from b b again i've heard numerous attempts to contact them this find out what was going on they were gone and for that reason your honour's we would ask that you uphold judge starr purposes in this case thank you all right thank you your time three points i made i asked you and now i didn't quite understand your answer why you didn't present evidence that this wasn't really a diploma mill and  sense because just as your honor sees it in a potentially harmless or innocent way a valid way judge starts out the other way and i wouldn't vision that other jurors might see it that way and i guess of course that's why you need contrary evidence they have to judge we view that as prejudicial evidence we view trying to join that i know if you have you're facing prejudicial evidence if you or you are to it try to pull the sting of it except you can  providing about how to handle it if it was going to come in but that wouldn't change the analysis of whether that evidence was admissible and should have come in any way the fact that there is a way to put it under kings for change the for i'd like to think not but i understand what you're saying so i'll let you but did you have another point or two very quickly judge the question we raised on the first issue is what is the correct standard and we don't believe the trial court's formulation of authorization defined as it was by reference to common law agency principles captures the full scope of potential sender liability under the t c p a and what we are suggesting is the appropriate instruction number one is exactly from the language of the regulation on behalf of and we let the jury decide what that means and i would draw the court's attention to judge posner is decision if you listen to behalf of someone without that person's consent you may think you're doing  and i think that would arise raise one of those situations about due process if somebody had no involvement whatsoever that's why the standard we propose is a but for causation standard if this injury and harm would not have occurred b for the defendant's involvement and interaction and communications in relationship with the facts broadcaster then the defendant is responsible as the sender and that that goes a long way towards what the defense said multiple times in their brief is you've got to look at the relationship you've got to look at the interaction in the evolved involvement between the judge what what if what if what if the client says you know i want to send out a you know twenty five percent but i don't want you to do it until i die until i you know sign off i'm not one hundred percent ok then you wouldn't you wouldn't say that that  but for causation goes and that sometimes it can be strained to the ridiculous but that's not how the court considers the issue in deciding upon the proper standard and that in fact when you have a simple statutory language and instead the trial court tries to add a lot of definitions explaining what laypeople can understand it only confuses more all right thank you very much mr cohen thank you thanks to both counsel take the case