university joseph walsh and lauren hawk and what i'll be arguing on their behalf and i'll be addressing the absolute privilege argument this morning and i'd like ten minutes and reserve five minutes for my co counsel to address the conspiracy consistent with the ph is regulations or only believes that whistleblowers this is a conditional or a qualified privilege to disclose in good faith to the proper institution or right officials ellie cases as scientific misconduct such a condition of privilege would protect the whistleblower from defamation claims even were allegations surprise that your honor is in the care about which side did not raise it is directed at your peril in this case we consider raising it but it has been removed from what we understand to be the authorita web site of the department of human services at least that's the way it appeared to us and when one was that removed i don't i don't know your honor when it when it was prior to the time though that the motions were argued in the record i believe i believe that's correct i'm not sure if i may have leave of course i can submit an additional thing about that i think i am correct i haven't studied the issue recently we are aware of  it and in your complaint was grounded in conditional privilege yes it was indeed your honor to move to the question of privilege we think that it's absolutely clear as suggested by the authority that your honor i have mentioned that absolute privilege does not apply and should not apply to allegations that are made in the research misconduct context at the university and we would say that is true in any university context whether it's public or private in this case however there's an additional reason for it not to apply because this is a private institution in our  briefs talk about the question of whether or not that is relevant we think it is because under the common law of illinois indeed under the common law throughout the country absolute privilege generally applies to proceedings legislative proceedings and other acts of state and so therefore because this is a private university we think that just simply as a matter of law and as a matter of the policy underlying it and it cannot apply in the private university concepts now there is some argument by the of pelleas in this case that the proceedings here are of a quasi judicial nature and they don't go as far as saying that the university or at least  this part of the university is a public body but they they do try and sort of have both fission fowle in making that suggestion to the court without those certainly the research and the reading that's being done to something that's ultimately for the public good you know that's absolutely right and in addition your honor the research that is issue in this case is publicly funded but there's a very very compelling body of longstanding law that has sort of two parts to one of them is that just because a private entity performs a public function a nursing home or a school it doesn't make it a public entity and the rules applying to public entities most importantly in the litigation of a whole bunch of things that we don't need to talk about in any detail those would attach to the university and universities as a matter of consistent policy always say as with western station a very strict litigation foster in the long history of the litigation that it has and it's not covered by the civil rights act because it's not a public entity just because it performs functions that have a public nature so that's part of the argument that they sort of implied the other part of the argument is that they're operating under these federal regulations that are important any three of title forty two so you consider the mandatory well they are minutes or there's no question about it the university has to set up certain kinds of structures but the university in this case is not constrained by specific for example procedural requirements and there are some essential procedural requirements that a bit of that attached to a judicial proceeding that are absent here that are serenely important in making that decision of about absolute privilege in particular and that is the absence of a right of confrontation the absence of the right of cross examination and the fact that the folks who make these charges even though they're required by law to make them in good faith don't do those make those allegations under oath you know the university may have the flexibility to require him to  permit accusations under oath confrontation cross examination but this university has chosen not to do that and the university the regulations that apply that are quote unquote mandatory do not require it what the regulations do require however the mandatory regulate sions do require that the allegations that are made against research years have to be made in good faith which goes toward the conditional privilege that's exactly right and that it's wrong let me follow up on what my colleague brought up in the beginning you told us that there's a reason why you didn't get into this or i opinion letter and that it has been taken down at some point in time and i except that question that i have as you know there are also there's also a case law out there that talked about that opinion letter and talked about the application of privilege and you know are you familiar with take a much or ok i'm not is there a is there is at least two yeah there's a there's a your way or i understood justice levin to suggest that the oh right letter that you referred to was discussed in those cases i am not aware that that's the case but our brief does cite a couple of decisions one especially from the the second circuit in which qualified privilege is applied as a matter of new york defamation law and we saw some cases there is one from maryland  it yeah and there have been a couple of decisions since this case was fully briefed that i discovered in updating some of the research in the course of the last couple of days and i hesitate to cite them here by surprise to the other cited indeed in our brief um there is there is no such circumstance where absolute privilege has been helpful why to these allegations of research misconduct or analogous allegations to certainly would be a case of first three of law which here is that that's exactly right and if if there is a construction and this is one of the things that the trial court did not deal with and it's also something that the pelleas don't deal with it if there is a construction of these out of these regulations and of the northwestern policies and procedures that impose a duty of reporting and they make this argument very strongly that there is such an obligation the allegation is one of making only good faith allegations indeed in our reply brief we make an argument that the other is a lack of coverage at least there's a factual issue about a lack of coverage of the accusers in this case under the regulations and the policy because the complaint alleges that they did not make these allegations in good faith and if you look at the structure of the federal regulations and the structure of the northwestern policies and procedures the people that are protected from bertelli ation for example you have negation of the complainant is to make a good faith allegation and the reason that it that we assume ourselves to the point that complaint and there is a wealth of allegations detail factual allegations in the complaint about the bad faith of these people that they knew that the allegations were false that you cues or is responsible for the well the some allegations gone the other way i mean there's some he said she said quite literally going on here well that's right it seems to me that's right there is but we don't what we do is as i understand it under six nineteen we assume that the complaint is vicariously liable for statements intentional statements on the family tory statements made by an employee well we think we think your honor that that's a lot of this of the state of illinois that's covered in our brief t liability for defamation has been something that's been settled for quite a long time it's not an issue that the trial court grappled with nor indeed is it an issue that the appellate raised in the court below it's reason to get northwestern university maybe maybe there will be a factual dispute if hopefully the case goes back down to maybe they'll say that the allegations that were made were made outside the scope of the employment of these people which is one of the ways that there was really contested and no it really wasn't in the end you know we alleged that and the inferences from the complaint allege that the allegations the accusations that were made against professor lois jarvis were made within the scope of their  their employment there is no question about that and indeed if you look at the whole context of it it's it's allegations of misconduct in the scope of the performance of research the two of the accusers were involved  themselves inside his lab and then as a competitor professional bean was a competitor of dr movistar bas as we outlined in our complaint in some meticulous detail and so his allegations were also made within the scope of his employment and the university we haven't felt way if they have an internal policy that requires individuals to make reports then that in internal policy means that when the reports are made the people making them are acting within the scope of the responsibility of their employment that's imposed on them so we don't think that the question of responding at spirit or is a troubling one  those were your teeth is not it's not a discharge under express authority of law well i don't see those rings is mandatory the cautious because there's no so i'm having a hard time because this should be coming from them you well you're out of the cautious way for us to deal with this is not to raise the issue mandatory ms because the problem is that these  statutorily imposed requirements for a procedure and what the university is supposed to do is set up this kind of a procedure there mandatorily required to do a mean dettori to point there being that's right funding purposes only that they are administrative for happily that's exactly really a consequence but the other side of the mandatory something funding can be taken away that's right the other side of the mandatory requirement is that what's mandatory is that imposed procedures that they have are required to be imposed required to be created and the answer to it is yes up to a point but the thing that really the kicker for us is that the mandatory federal regulation ninety three two zero three defines a complainant as a person who in good faith makes an allegation of percentage miss funda ninety three to tend to stiff fines good faith and it's a standard definition of good faith you've got to believe in good faith it's true and you can't recklessly ignore the fact and those are repeated almost verbatim in the university's own policies because they're required to be  allegations in good faith the university could not as a matter of regulatory policy they could not adopt the position that you pelleas advocate here that you can intentionally make false allegations against another researcher in bad faith they couldn't do that and that's the flip side of the argument essentially that they're making that they ought to have the freedom to be able to do that as a matter of illinois common law and that doesn't make any sense because it's going to introduce a tremendous incoherence into the body of the slaughter seems to me that there should be no inconsistency in this particular context and i hope we've demonstrated both in our the tremendous importance of what this what's at stake here given the nature of dr mobius jarvis research and also from the standpoint of the university given the nature of the work that it does and the funding it receives but the point is that it's to allow for for the university to to advocate that anybody can make any false allegation no matter what their motivation have faced knowing that it's untrue would be a conflict in incoherence in the law between the common law of the state of illinois in the federal law this mandatory regulation of good faith that is required we don't think that it's clear that the nature of the importance of the research that he's doing should not be unfairly he's got an obligation to do things right no one disputes that but he shouldn't be victimized by stuff especially in the important area of the research that he and the university is doing ok francis good morning again eric massa on behalf of defendants northwestern often bush last i've heard some skepticism from the bench this morning about our position and i want to spend the next ten minutes or so trying to address those issues and see if i can persuade the court as we try to do in our brief that what we're asking the court to do is entirely consistent with existing illinois it well it just doesn't seem that way it doesn't  student who is on successful or not doing their best job and it almost creates a tremendous burden on the university day have to deal with people who may have a free ride who are not suited for their position that let me address both of those issues and i'll do it in reverse order and start with with what you just said just smith that's true whenever you have an absolute at least there's a danger of that now but this is a private institution well it's a private institution acting with an under an overlay of federal regulation reporting up to the department of in not some ways terms of there's the state no federal funding anymore well that research universities if you if you want to be a research university you have to take that all funding in this country there's just no way around that but but to the dresser your point and i'll use a couple of examples that hit perhaps close to home to a lot of people on this from the judicial of my point is that reports to those bodies are absolutely privileged regardless because there are consequences for line and there are consequences for lying  western zone policies and procedures is to show that if somebody acts in good faith they will be protected against retaliation if you act in bad faith just as if you act in dead faith when making a report to the air sea wrapped in bed facing filing a pleading with this court or any other court there can be severe consequences you can be kicked out of the university you can be fired those are very severe consequences at least to severe is what a lawyer faces if he makes a false cleaning if he sets a false pleading and in court so so those kinds of situations are directly analogous to what we're talking about here in the sense that a there is absolutely a duty to institutions that receive federal funds as northwestern as the set up this process and to require research members of the research community to report to a point it requires reporting and that's true whether we're talking about a camel duty for a legal duty to report it's of duty grounded in law to report forty two u s c section two eighty nine b and the regulations promulgated it there on a legal duty to report and you combine that with the preponderance of the evidence it has to prove that the conduct was intentional or reckless not just negligent it has to give the accused access to all of the evidence that they consider it has to give the accused the right to be her ample right to be heard it's not the same as being in court but is awfully darn close and it's at least as much process as you see in these other contexts like the air d c or the j b where so you're basically saying is that the sort of protections that are available in legislative judicial and legal proceedings ought to be extended to the academic arena which hasn't been done yet here in illinois many accurate there i wouldn't call extended because it hasn't been addressed before but but it's certainly extent in the sense that it hasn't been addressed and so in that sense yes it would be an extension but it's not an extension the sense that this fa you know to my reading of it seem to be going in the direction that you suggest we should go here i refer to the santorum yeah case well there was construing a particular statute it was that the that was the supreme court addressing a creature of the illinois legislature for the most part defamation law in this state has been left to this court in the illinois supreme court to determine the framers of and whenever this court the only public court has address this kind of issue namely there is a legal duty to report and there is a an administrative process cloaked in confidentiality that is intended to address and get to the bottom of what actually happened  this case there's the added feature of a requirement that if it's found that the professor did not commit research misconduct northwestern is obligated to take any reasonable steps it's asked to take to restore any  reputational harm that he may have suffered now of course it's always been confidential he hasn't chosen to bring a lawsuit but there's no allegation that anybody involved the process disrespected that requirement around in jail i want to press i just  royal and i'm not a big we familiar with a royal but might the first two i can say i think pretty definitively and not really grapple with this question of absolute privilege they just certainly in the second circuit case just said what a second and on this record because of the second circuit is the second for a case was decided on summary judgment on this record we're comfortable saying that that there is a qualified privilege and that it was not abused so affirmed so didn't have to grapple with what we're asking th grapple with namely these very compelling public interests in encouraging their whole question you're got public policy questions here and both sides and now it's got the you know the the researcher ought to be able to you know do is research and the people who are working on it should be able to make sure that all the information in there is accurate for the public good correct and they should be able to  consider the consequences of finding only a qualified privilege why isn't a qualified privilege good enough as it is in some other contexts the reason besides the two points i made earlier there is a legal duty to report and there is this administrati process in place is to look at the consequences of making the privilege anything other than absolute it's the same kind of consequence that led the only public court to find the absolute privilege applied in multiple other contexts like this  and that is if you put yourself in the shoes of say a twenty five year old researcher working in a lab whose future career is in the hands of the head of the lab and you see something that causes you concern and fair opportunity to totally express themselves because then it would be based on good faith nona absolute behind the scenes closed door way of dealing with it and that then the exact same issue comes up whenever the court considers and applying an absolute privilege let me let me point no one i understand exactly what you're saying i'm just saying i am from a year with incidents in there in universities where a student is especially law school this is common in law schools where students abuse a professor and get away with it and it's under the gangs you're saying salute and the problem your honor with trying to stamp out that sort of bad behavior by making the privilege qualified is that then you also discourage people with good fa complaints from coming forward especially if they're in a situation where they their careers may be at stake they're just starting out in their careers and not only are we asking them to come forward and make an enemy of somebody who's  who's got power over their future career not only are we asking them to come forward and invite scrutiny of their own work we're also asking them to go through the challenge to say the least of discovery and trial and appeal with no guarantee that the outcome will he is simply the actor who are reasonable steps of the normal process of discovery which did not occur here not not in this set of circumstances not in this context rather than again it should be discovered correct and that's the one of the one of the points of an absolute privilege is that what you're saying you don't believe that things should go through discovery to fully disclose every detail in the litigation context you know your honor because the whole point of an absolute privilege is just as if if i file a pleading i don't know i understand again which you're saying i just want it on the record what you're saying because this is you are asking us to change the law that has been in the fact in this state from day one in your asking us not to follow what other states do in your trying to change it totally and i'm saying i think we  things the way that i think the way they've been is that this if you look at the case law funnelling up to this particular factual context this particular factual context of research misconduct proceedings that are required by federal law where there is a  process in place to get to the bottom of what actually happened i can't emphasize that enough what you're suggesting just this myth is it a two parallel tracks you have the university doing its own investigation to try to get to the bottom of whether privilege applied something that they know was proven to be false it in earlier years said of an earlier procedure you know you're pressed i understand the question not just the justice potentially but let me answer it this way whenever the absolute privilege applies no matter what the context is it applies even if there are allegations of bad faith knowledge of falsity ill will bad motives and the reason that we have that regime for these unique neural contacts that we think this fits with him is that it's very easy to allege a bad intent i mean how do you really know what's in somebody as mine it's easy to make the allegation and it takes heaps of discovery and often a trial before somebody feels comfortable making a determination of whether in fact it was in bad faith or whether it was made with knowledge of a falsity so you know i suppose the court could look at this  allegations and complaint and say it doesn't even get over a qualified privilege but more often than not when when you talk about a qualified privilege as opposed to an absolute privilege you're talking about much more litigation much more risk much  professor most jarvis's process of the charge which they're required to do under the university's policies once we get to the end of the process university did make a decision either research misconduct was committed or it wasn't to report up the chain when they took the steps that they did and decided further investigation was born and now course the plaintiff says everybody knew this was false from the beginning everybody made that made that made these accusations without from maryland the site of the year after the one that you cited called arroyo versus rosen in that case the court specifically the climb to adopt absolute privilege in a very similar context that a university research associate wanted absolute privilege of a context of research that was being undertaken pursuant to a grant with the veteran's administration so mean you know the question is which way should the court go here i mean it's we don't have binding precedent here in illinois and this limited issue you want to be persuaded by the choir's i judicial nature  report but you know what we're seeing is some evidence of case law and similar circumstances with the same federal regulation that a conditional privilege should apply and we haven't yet seen a case that says what you want us to do here to two points response that first by understanding and i would if i could request leave to submit three or four pages to address these these points within the next week but my sins other cases that  they don't grapple with the question of whether there should be an absolute privilege they just find that yet there's a prophet privilege it protects the defendant in those circumstances and so there's no case to continue for that so i'm not sure that they provide much guidance since they don't really wrestle with these public policy issues that are always at issue whenever you're considering the absolute privilege of the second point where we intend to grapple with the party's policy issues trusting of i don't i i don't doubt that for a thousand and it was a conspiracy to commit defamation and in order to prevail the plaintiff needs to establish not only that there was an agreement to defame him but that tortious overt act in furtherance of that agreement took place and that there were damages stemming from that and here the dismissal of count five was correct because there was no actionable defamation to give rise to the conspiracy the allegedly defamatory statements by acer and levine took place in two thousand and eight and the complaint was not filed until two thousand and eleven almost three years later so there is no action e defamation to give rise to the conspiracy and the court also found separate and apart from that that the statements were subject to absolute privilege but i'm not going to go into that because my counsel has already argued that with you so the illinois supreme court in the attic case made clear that a civil conspiracy and action for it cannot be maintained unless there is an action of all twittered that underlies it and the reason for this is because the agreement itself does not give rise to any damages you can agree you're going to do something but you haven't been harmed by that so the civil conspiracy has to rest on the underlying tort now that's not to say that a civil conspiracy is not a separate cause of action it is and the reason that it's a separate cause of action is because it allows was the liability for the tort to be spread amongst in this case a conspiracy to defame if there's no doubt actionable defamation there's nothing that the conspiracy can rest on and that's where plaintiff has gotten confused in arguing that the five year statute of limitation applies in essence what that argument means is that the conspiracy is a stand alone tort because we have the defamation where the statute of limitations is when you're in it it ceases to be actionable after that and what plaintiff is arguing is five years no that's not correct let me just back up and give you the quick here's what happened michelle is there was the young researcher in the lab she was an honor student the there is no question that the images because plaintiff admits this in this complaint they were falsified they had to be corrected to go into that is the so what she did was she didn't know what to do when this came about so she went she had worked for dr levin and previously miss acer went to after asking what the proper protocol was from dr levine she then went to that she called dr wrong and sad there's a problem here is what needs to be done it's improper to let this go i want it has to be fixed i'm going to carbon copy use of dr wong was simply carbon copy she said i made a carbon copy you on the letter that i am taking this up with plaintiffs and so dr wong did but short of that dr wong was not not directly involved in the allegations between acer and dr levine thank you why should we now follow the hartman versus kerry case the indiana supreme court case that involved the producer university there fundamentally i think probably three reasons first reason is that there is no opposition and dettori obligation of only good faith allegations in that case the second reason is that purdue university is university and well and it's a public institution and the that were conducted here were personally to a specific statutory grant by the indiana legislature and there were to raise the point to just dismiss raised there were sanctioned specific sanctions for making false  accusations the legislature in indiana apparently has seen the kind of chin elegance arising from victimization of of of professors by either students or other staff and so they they wrote in specific sanctions there are no sanctions at all here in the northwestern procedures and it brings me to a second point that's related to this due process argument that this is quads quasi judicial proceedings if you look at  the appendix in the universities policy which is an appendix page one fifty nine it's a policy or procedure one point four it allows the administration in this case vice president walsh and quokka bush to completely ignore the proceedings and the conclusions of the original investigation committee without any explanation and indeed in this case that's exactly what  conducted his own private investigation as we'll that some of which we allege in detail but there's other things that we expect that he did as well as did kwok and wish and then without adequate explanation he said we're going to go out on these charges even a after the facts number one and the conclusion of the the investigative committee inquiry committee number two demonstrated to him without any possibility of reasonable disagreement that the allegations against dr most service were false and then who did he publish it to we published it to dr movistar mrs deane's which is like a shot in the heart and in the academic environment is a matter of common sense so for the university world class university at this is any organization has pockets where there is wrongdoing this is not an indictment of northwestern university this is an indictment of a flawed procedure and several people who had motives against dr modus jarvis but for them to argue in this context that it's quasi judicial and he's protected when they ignore it and rejected the proceedings that were defended  this lawsuit was not filed until after all that stuff happened that the most jobless and i defended him within the context of the university proceedings submitting reason logic evidence documented and then when it gets up the wall she brushes aside without investing without any explanation was the third some evidence that one of the participants flipped their version of what happened then indicated that your client had applied some pres has made it trying to influence or the like but i think in the record it also shows that she did not lie the itchy eventually when put to the test she said i did not sue anything on say anything on truthful for to the first investigation  committee and some of the things she said were material import and here to that committee because she went in and she said that michelle i was her and come to her the day before that your first paper was going to be submitted and told her that the data wasn't real what did they do in terms of informing dr most there was nothing that let him submit the paper and then what happened michelle was there instead of going up the chain of command as is your honor yes what  the question for you if this case were against the university of illinois rather than northwestern same result for the court i think yes i think the answer is necessarily yes i'm the context of whatever procedures they would have but if this is the policy that the university of illinois would have adopted the answer to that is yes because of the mandatory requirement of good faith allegation what they're asking you to do as a matter of illinois common law is what they can't do because of the mandatory out obligation of the federal law requiring good faith they can add a limb an eight from their own internal policies and regulations that obligation they have to have it in there but they're asking you to do that they're asking you to wipe out both the regulation and their own internal policy right so is it then irrelevant in our determinations that northwestern is a private as opposed to what would well i think a role in this too strong a word i think it's not determinative like strong words on here i think it's not that i think it's not determinative as another factor that's what we that's what we think about it and on that point just one extra thing i'd like to deal with conspiracy to if i could and then we  trial court did not deal with it and of course i know that an appeal we can raise any question that would allow the court to affirm that this is not the case to do it because you're going to set aside what it is the lawyers rely on these cases you go and look and say how long a period of time do i have to file this and there's this eight hundred ninety case one hundred twenty years ago that's validated by only persuasive authority i understand it's only persuasive i understand the seventh circuit is not binding on this court but a lawyer goes idea that a professor who's accused of this stuff is going to go running into court and and and sue the commander of the battleship so to speak and the battleship itself is is borderline ridiculous because of the very difficult position that it puts somebody in especially in an tenured professors as doctor most jarvis is and so so the point is that let's fight it within the apparatus of the university and if it turns out well then you know what it's a bad experience but it thing no no no ok we will decide you can have a seat but we're going to decide internally if there's any need for any further briefing as had been offered up we appreciate that we appreciate the arguments and the briefs presented to us very interesting case a case of first impression you certainly have our attention we are adjourned we have another case but i think the court is going to consider constitutional matters of  different nature and a five minute