caldwell hole still company versus r j reynolds tobacco the first point is that the terminations of caldwell's direct purchasing contract is not the source of injury at issue in this case in fact it really didn't even causing injury because cal was able to purchase the products for the same price or better than it was able to when it was a direct purchase or the reason why it's called well never got the best price from when it was under their three tier pricing plan caldwell now purchases from another wholesaler who does get the best price and therefore is paying about the same it's reselling it the r j or product that is causing those problems now not because of the lack of a direct purchasing contract or for purchases they make from caldwell when it will pay that buyer the loot that retailer the lucrative biden payments for product purchased from caldwell's competitors and went on for years lose sales lose customers lose business lose money call has been shrinking for fourteen years the reason it didn't follow suit originally as a couple one the reason that this happened to call will is because it was a party along with twenty or so other wholesalers in a piece of litigation back in two thousand and three in two thousand and four so everyone knows in this industry if you sit right is or you assume philip morris you better be ready to take their that lightly and they put it off put it off put it off until they reach the point where they say all right i am going out of business if i don't do this at that point came in this case mostly as a result of the aftermath of those within this system of buy down it's not being honored that that was pretty much the final blow to colwell where it was either sue and fight for your life or of live out the remainder of your very short life  case if i could however i'd like to be fully mention the the other main argument of r j our first and that is that that we're talking about a refusal to deal here not talking about a refusal to deal we're talking about coercing a third party into not dealing with caldwell and under the jurisprudence that conduct receives a lot less protection than a mere refusing to deal caldwell doesn't need a contract with r they just needed for our jr to not create an exception in its contracts with retailers an exception that says hey retailers will pay you these lucrative buy downs for every carton of our product that you buy and sell in your store unless you buy gold that that that which has nothing to do with a contract with caldwell is is is what is happening here so we're not trying to argue with r j ors contention they don't have to enter contracts with caldwell however if they are trying to coerce a third party to not deal with coldwell then there are certain standards they have to meet and want is that their actions are taken in furtherance of their legitimate interest or to protect their legitimate interests rather than simply to vindictively inflict injury on another party for some perceived past actions that they didn't like and so on there of it refusing the deal are not are not germane here only a continuous tort issue again the operating cause of the injury happens every day when a program to to to inflict injury on caldwell up its it every two weeks by down payments are paid to zero retailers and these retailers cannot do without these payments that they represent substantial portion of the profits that they make in fact that they can't really be profitable on r j are products if they pay the going price for them and don't get the buy down rebate and this is why they cannot buy those products from caldwell under these current circumstances now this is something again it's a very complicated by down mechanism program that is administered on a weekly basis by r g r payments every two weeks transactions occurring daily work where our jurors to make a decision of whether or not they're going to pay that real retail or buy it down so it's not something that was just done once fourteen years ago and the affects of that are still being  on in our complete i also like to mention this this idea that it reynolds brings up that what we're asking for is a sub job or agreement whatever that is a sub job or by definition is someone that doesn't have a direct purchasing agreement with the manufacturer they're buying it and that's what really is is now i mean that's what caldwell is now relegated to some job or status with respect to ours and our products they still direct with philip morris and think that's with respect to our jr because they're no longer a direct purchaser but again when did that happen that happened when they were when their direct purchasing contract was terminated in two thousand and four but again the that's not their problem that they're a subset of are because they're still getting the product for the same thing they used to have to pay r g r four that the problem is that in reselling it there's plenty of sub jobbers that are part of the buy their own process the fact they don't directly purchase a problem did starting to  no because around the same time and presumably for the same vindictive reasons r j are separately went to their retailers and said look under our contracts with the retailers if you buy from caldwell we're not going to pay you to buy down  choir more and more companies in this sector whether it be of chewing tobacco or cigarettes where they brought those acquired companies products into the fold of this exception they created in the retail contracts that punishes cowell and doesn't honor its invoices for the bottom purposes and drives those retailers away from call this business on the merits of the loop the claim of religious defends its actions but the standard is that if you're taking an action with a specific purpose of harming someone of inflicting injury then you need to have a legitimate business purpose for doing so the people inflict injury every day competitors fight and injury each other every day take market share take customers that's not what we're talking about these two or direct competitors not only is advancement of riddles legitimate business purposes by denying coelus participation in this by down program they're actually limiting their own distribution they're willing to limit their own sales in order to punish caldwell for something if they perceive a little should've done fourteen years ago so given that that is their motive the match certainly don't offer any other motive and that appears to be their motive in their not program yeah to technically state it does call well doesn't really participate it's the retailer participating but you know what i'm saying and that's kind of an important distinction because of this issue of rentals arguing that there's got to be some two instances every few years it happened i don't know what kind of communications are taking place between my client's employees and their representatives with our jr that they deal with me i should ask your slate can you point to any citation in the record where you're asked to do it within the limitations period well the what the limitations feared is continued depends on the application of continuous tort doctrine but no the last time that from the date of the suit back the last time the client had me formally write a letter and there were reasons you only have a right to do to pursue your legitimate competitive interest it frequently happens between two competitors i e i'm trying to talk your customer into buying from me here they're not even competitors but the activity is still taking place and it's not sales and if there appears to be and they've had many years to to say what their motive is and of declined to do so but it appears to simply be punishment of color of that not only does it advance its legitimate business interests but actually retards them because that's one less distributor who had has a lot of tentacles in that market and been distributing r g s products and buying them directly for for fifty years before this dispute arose  the last thing i would say is if the court finds the continuous tort doctrine does not apply this is not a continuous pattern of conduct but rather is isolated incidents of caldwell being of having their participation by their own program excluded one sale after another after another and i think that's what the district court found when it made that comment about these being separate acts well if that's the case then each of those acts should have a one year prescript the acts that occurred within one year before the suit was filed should be allowed to go forward in this case and not be for scrying because once the act you're talking about the act well there are several acts and they all involve the administration wholesale i will not they're not they're not changing anything when they say that they've been doing that b e well not only each transaction they just they keep doing it again on each transaction but yes they have refused to coin the other actions they're taking that are the source of injury is in fact paying a bite down to a similarly situated competitor of caldwell's on a sale that would have been called well sale if reynolds was not paying the lucrative buy down to that retail and of course that retailer and to instead person that product from someone else so there's actions being taken in this every day it's not that i dug a canal twenty five years ago like that like the one case discussed in the brace and i haven't done anything since then but you've said you're still suffering damage from that canal like doug this is an instance because this business transactions one after another it's one new customer after another that wants to purchase from called in so we do think it's a little different your honor than the cases that do involve one decision the effects of which without further action just continue out on into term i'd like to reserve decision not to have a relationship whether as a direct wholesaler or as an indirect wholesaler with caldwell that decision was initially made in two thousand and four and according to the complaint it was reaffirmed in two thousand and eleven and again in two thousand and fourteen any harm to caldwell that resulted from that decision is just a consequence that follows from those earlier decisions they're not independent unlawful you can always reach characterize that kind of a decision as a continuing decision not to reestablish the relationship that you previously decided to terminate but the court in that situation rejected the continuing violation doctrine on those facts otherwise any sort of tort breach of contract claim could always simply be recapped arise as a continuing violation because the defendant hasn't remedied the alleged breach or the alleged tort so the cause of the injury here was the decision not to have a relationship with caldwell and that occurred no matter which point in time you look at in the complaint well outside of the limitations period the neither the  nor the tortious interference claim are actionable on the merits either with respect to the group a claim louisiana unfair competition law allows a business the absolute right to deal or refuse to deal with whomever  wants and that's what's going on here caldwell argues that in fact this isn't about refusing to deal with caldwell it's about the relationship with the retailers that misunderstand misunderstands what's going on here and it's not even an accurate characterization of cal to put caldwell on the data reporting program so yes the buy down payments are alternately made to the retailers but they reflect the relationship that reynolds has with its wholesalers whether it chooses to accept data from a particular wholesaler and issue by down payments on that basis and so that that work to your disadvantage like mr kagan i don't see why it would work our disadvantage that there is of course a retailer involved here as a third party but ultimately it is on particular wholesalers who are either allowed to participate or not allowed to participate in the program and that's a relationship that reynolds chooses either to us to have or not have with particular wholesalers and it's not just caldwell that isn't a part of this program either there are wholesalers that reynolds chooses to have a relationship with and wholesalers including but not limited to caldwell that it  doesn't the point is that louisiana law allows a business that absolute right to deal or not deal with whomever it wants and caldwell would got that principle as a matter of both substantive and s would open the door to essentially boundless judicial scrutiny of business decisions to deal or not deal that are made every day both this court and the louisiana courts have rejected that kind of an expansive understanding of both it fails on the merits because because of the absolute right to deal or not deal it also feels for lack of standing under this court's to boast decision which holds that as a matter of louisiana law only competitors and direct consumers can bring the loot but claim and caldwell is neither the only argument made for why this court should ignore that binding precedent is based on a plurality opinion of the louisiana supreme court and that's not sufficient under this court's approach to erie  for the panel to try my precedent with respect to the purchase interference claim caldwell concedes that the continuing violation analysis is the same whether we're talking about or whether we're talking about the tortious in her ference tort and so that claim is untimely for all of the same reasons it is also fails on the merits this is a highly disfavored tort there is not a single reported decision that either side has been able to find or cite in its briefs upholding liability under louisiana law for tortious interference in the reply brief caldwell points two to one decision in which there was such a claim asserted in the trial court on appeal however the court didn't address that claim and the  judgment was supported based on claims other than tortious interference of this is a highly disfavored claim and for good reason every time a business like ronald's makes a decision consistent with its right to deal or not deal with whomever it  case that we cite in the briefs is instructive on that there in radio station was free to choose who was going to be mentioned on its airwaves or not and by deciding that a particular ticket promoter couldn't be mentioned on its airwaves that had an effect it had a predictable effect on the that promoters relationship with its customers that's not the kind of interference that rises to the level of a tortious interference claim if it were again everyday business decisions would be subject to that is all that it happened we would not be urging that point as forcefully the what has happened since then is the federal district courts in louisiana in the courts of appeal not every single one of them but i don't know of anything with the other way  but but the wave of decisions post share of the has been to treat it like a majority opinion to adopt its reasoning and to expand standing beyond consumers and competitors to include other parties so i think if the court under erie were to go back and look at the louisiana immediate courts as well as the district courts treatment of that issue then conclude that louisiana law now is that standing is extended beyond just of consumers and  action they were talking about because there were issues that were threads through more than one of the bin case is undoubtedly indorsement for the proposition that that is a viable cause of action and we distinguish in our brief the  the cases on tortious interference with business that rely upon by reading as the facts are different for various reasons i don't need to repeat those here and others responding to any of the questions t