should be reversed where the most simple and straightforward is that free conferencing cannot be held liable for tortious lee interfering with a contract that had already been breach that breach began three years prior to free conferencing involvement with texts are the third party and continued uninterrupted through free conferenc involvement with text are in two thousand and eight it would have continued without free conferencing involvement conferencing was involved so it seems a bit of an  it's not so the the minnesota law requires that there be but for causation for the pre continuing a breach aiding a person who has already even contemplate there is just an initial breach of the continuation of if there is a continuation of the breach however we're talking about the tort here of procuring a breach there needs to be a but for causation so each month may have been a breach for instance for the purposes of that contest the statue of limitations quest cites a few of those cases that each month and bill improperly goes out reruns the statute of limitations but here it's different we're talking about a torque and to have intentional procurement means you make a third party do something it otherwise wasn't doing and wasn't inclined to do in the first place and so here the bill the act of building was the breach and i'm not conceding at all that that was a material breach i'll get to that i don't think it was however to putting out the issue  two month was a breach that billing began in two thousand and five and by two thousand and eight the bill contained twenty seven different free calling service companies the bill would have went out whether or not free conferencing call traffic was on it or not they simply insufficient to establish the intent of this tort here you know the court glosses over that but it's the lower court costs is over that point but it misses the point that it's the tortfeasor causing the third party to do something it otherwise would not have done again and this thing in a breach inducing a breach as established by the law is simply insufficient and so on the issue of procurement the intentional  interference with the contract here fails and i think that's the most straightforward ground for reversal here no but far causation however there is also the important issue of the court's failure to apply collateral estoppel now this court has dealt with these issues before and that's in the sam com case the legal doctrine of collateral estop mandates a reversal of the decision below with respect to the issues of free conferencing intent its purpose its justification of its actions and whether that circumstances from two thousand and five through two thousand and nine in fact the court said that it looked at the long winding contentious path of access to malaysian and they did not do so in a vacuum and in this stand com case it focused on free conferencing actions and its tenth intent from two thousand and five all the way through two thousand and nine so even though there are two different companies here that they're interacting with it's your position that you could establish that they intended the same you as to both text and saying yes correct and that is because all of this same evidence was looked at in both cases in the matter here in the lower court all of this same exhibits were admitted into trial san come in tech start the same the testimony taken  san com matter was it made it a trial here quest counsel crossed examine free conferencing witnesses on the same topics and moreover quests witnesses said that the free conferencing deals were the same everywhere and so all of the same evidence was looked at the same questions were asked all the parties had a full and fair opportunity to be heard with the law rather than in san calm the court found and these circuit affirm that free conferencing did not act with an improper purpose that it was not until two thousand and nine when the federal communications commission issued farmers to that it appeared free conference saying the business model violated the terra there was also a finding by south dakota and this court that free conference  was simply to take advantage of a regulatory system that was unclear until two thousand and nine and that covers the state period here is this so you say this case does not cover a period post formers to this case or does not this case the contract was entered into in two thousand and eight and so it's a same overlapping time period farmers to was issued in two thousand and nine well the damages here were walking around a million dollars or so as i recall correct ok so is there not at least some time period that follows the farmers to case that would be would overlap here payments were made p and so because of the issues the law is identical the issues were identical the parties were identical and the same evidence was admitted and  had both trials the doctrine of collateral stoppel should apply now even if that the fact that these issues the issue of intent and justification and purpose should not have been really a gated the court's decision on those issues is not supported by substantial evidence so putting the collateral estoppel issue aside looking at the facts admitted in this case there's just simply not enough to establish an improper purpose and intent to interfere so here there is witness there's two witnesses david erickson and sure now and they provide undisputed evidence that the only reason for the conferencing and turned into an agreement with starr was to take advantage of the text our agreement with a t n t it had absolutely nothing to do with the t support a finding that free conferencing entered into an agreement with texas star to cause it to bit issue bills to quest in mind credibility there is no substantial evidence to support special knowledge so free conferencing in june two thousand and seven was asked to back in agreement that's all it would that's all it knew it was asked to backdate the agreement but in january of two thousand and eight the federal communications commission granted a petition for reconsideration on farmers one and that was based on qwest allegation that there was fabricated evidence months before tech star entered into an agreement with free conferencing the entire world knew that there was a possibility of fabricated evidence impacting the farmers one decision so that was all public knowledge there was no special knowledge that free conferencing had prior to its entering into an agreement with tech star that gave it any improper purpose and i don't think the court's judgment on those issues was supported by substantial evidence now as i stated there is under skewed evidence that the reason for the conferencing entered into an agreement with tech star was to take advantage of that deal with a t n t free conferencing do qwest was not paying now finally i've not missed this point the breach here was not material and this is something that the san com court found the calls were to live this is a federal court federal tear the calls were placed the calls were delivered this was simply a billing dispute a billing dispute as evidence by quest letter to tech star in two thousand and eight said we dispute the bills we're not paying any past bills and we're not going to pay any forward bills for this type of traffic and it listed seven or eight reasons why it wasn't going to do that but no cull traffic was hindered delayed prevented in the sam com corner which should be given the weight it deserves found that they're that to state to quote the court but the contrary itself was an affected by that billing it was just simply found that the cars that were built couldn't be built under the tariff but the greenman was not materially very just and so the claim what i would call the damages if you disagree with that choice of words but the the the farmers to a decision was rendered in two thousand and one and as i understand it after that decision there were calls terminated to to free conferencing under the this this l c r protocol and bills were submitted to quest for those calls that were terminated after the date of the farmers to decision is that in my thousand and eight it says we're not going to pay anymore and it sticks to that for about three months three four months and then all of a sudden it's lawyers decide that the regulatory landscape is so unsure that it decides to implement this fifty percent rule and it does so only to reduce its exposure to tax are in case qwest is wrong in tech stars right these damages are not recoverable because they're not foreseeable and they're not damages they're simply a result of a legal strategy to reduce exposure and so is under no circumstances do i believe those damages are recovered you will rule in footnote ninety six  local exchange carriers couldn't recover under the terms of its tariff that it was still a value provided and that it could recover a just and reasonable rate in our papers we've submitted that the just and reasonable rate could be the rate that qwest decided to pay those those lease costs routers it found that market rate to be one that it used to connect the calls and so at the very least if the court sees any damages which i don't unfortunately your honor they has not to the but it is still good law and it has been referred to at nazia as not ad nauseum since two thousand and eleven if the court has nothing further i'd like to  because in the farmers two case the f c c had expressed only found that free conferencing expressly structured its contract and quote intended from the very beginning and for purpose on for separate occasions the two thousand and sixteen decision this court sets the issue is whether the specific moment the contract is entered into whether or not they were new was legal early illegal at that time now here what's the issue the issue is whether free conferencing knew what it contracted  april two thousand and eight over three years later whether it was acting in an illegal manner and much it happened in that three year time for the west had sued at trial in this case david erickson testified that he was over where of that decision was already had to be a pending end user customer for terror charges two o'clock and despite that three months later aggressively pursued and enthused tech started enter into a contract to provide services to him with out trial so he knew and he testified he knew that knew that because of that there because of the contract with a t t there was these preferential differential rates and costs cost going to go to eighty indeed and he was going to get paid on which judge davis found motivated him to enter into this that if you do not know at the time that you're entering into a you're interfering with someone there what your actions are is illegal that that exonerates in contrast minnesota is different minnesota law looks at the restated section seven sixty six comments and seven sixty six comments time specifically says it's not before this or we run these very cases to the court and free conferencing said wait that's the restatement south dakota law is different and now they're arguing  let's turn now to know about this i asked this question about the farmers to the decision and it's it's clarification about what isn't in use or does disarm of the damages that were awarded here to visit spray and post farmers to absolutely the damages here goes so the farmers to decision clarified for everyone in january of two thousand and eight david erickson was very much aware of a decision that showed his business model was illegal and he still continue to move forward without hesitation just as judge davis now you're referring to help me recall here you had farmers wine and then you had a decision where they actually  had been presented was presented with with information and indicated it rendered a decision that it was going to go into review take a new take another look at this topic right and then we have the third decision which is farmers two that's always strange we call it farmers one farmers two and farmers two but you think you're right or farmers one recount the first decision did more than say we're going to look at it again the first decision specifically held and you have to look at the footnotes and look at the f c c rules saying it farmers one was no longer good law as of january two thousand and eight and they specifically said that you have to be a pain user customer the only issue that needs to be decided in what you're referring to is farmers to from november of two thousand and nine was whether or not qwest was right and that this evidence had indeed been manufactured the factory didn't isn't contracts and to show that they had never paid so all farmers to in november of two thousand and nine deal with say we've no evaluated the evidence and quest is right and as said in farmers one frankly and in farmers one we conjure and you were two thousand and eight if you don't have paying your dues or customer you're not entitle to assess access charges and that was established from the beginning and that's the very point the critical this is not only the law going forward with this is always will be and that was always been that wasn't farmers i was in the northern valley decision in the northern valleys nation both with sprint and west as pointers the f c c specifically said the fact that you have to have a painting and user customer has been the law for twenty five years since nine hundred eighty four and if you look at the regulations the regulations specifically say you are the paying and you have to have a paying a new user customer and that i was going to move to a different topic but i think i'm going to address your honor's question with respect to footnote ninety six for a little bit and with respect to that i respectfully disagree with moni colleague who argued that the f c c has never addressed in the footnote ninety six question you know our papers and i won't go into all of them the why max decision being one the northern valley decisions being others several all american decisions the c has said point blank that footnote does not say you're entitle to compensation it was an open question that the f c c left informers too and that lou paul has been closed and closed again and indeed judge griffin or in the southern district of iowa was confronted with the very question and said it strains credulity to argue that this purported loophole has not been closed and there is a recent decision not cited in our papers that just came down in january of two thousand and eighteen out of the ninth circuit and it specifically in getting to it it's the caller i for you case eight eighty fed third ten forty eight and that case specifically looked at if the tariff doesn't apply and if there is none to go no negotiated contract in place covering the calls in question is there anything competitive left such as text or can do to recover some portion of the charge and the court went through decision after decision after decision and said the answer is no the entire purpose of the communications act is you have to have a contract and if you or you have to have a tariff and the only exception to the mandatory tariff in requirements of section two hundred three of the communications act is a negotiated contract and they have been here that's the ninth circuit ninth circuit who is not a split in the circuits that what other circuit court said something different they only have jurisdiction up to valuate the communications act violations and remanded to look at to a district court to look at the common law issues the ninth circuit specifically looked at the question after the fact such as after we managed point and says you have no right to recovery and any kind of any contact that was the d c circuit did not say you're entitled to they just said the f know how do you square that with the previous case where this point that you se was simply trying to take advantage of an uncertain regulatory scheme and at that time seems to me tha another interpretation of what you're saying is trying to take advantage of an uncertain regulatory scheme the difference is this and that is there and i don't agree with what i'm about to say who because i very firmly believe that  in january of two thousand if you read that contract and you took the time to look to see what does this mean when you say you want your but whole point  what they were already doing is it was unclear to me it would have taken a professional telecommunications person to figure this airline was not the only reward upon the experts in the field who were the local exchange carriers i thought they were not there because of that i was unsure if they didn't know why should i that was the essence of the are here however as of april two thousand and customer care access charges to more this is not one recent esoteric i need a professional to help guy he's now on notice and he understood and testified that cites to a number of cases which say if the contract has already been breached i can't be responsible for inducing yet another breach and in this is the entire point the promises are breaches here every single customer of text or has to be evaluated separately tech star has about ten thousand customers about nine thousand nine hundred eighty comply with the tariff and quest has to pay taxes charges and so what you have to look at say did the breach induced b damages would not have occurred but for the inducement by free conference counsel or any of the cases you cite on that point tortious interference cases conduct conveying to a third person a designer to me and so the question is when you look at the book for causation the whole point here he is but for free conferencing induce qwest have you heard these damages and the answer is absolutely no because unless they actively solicit aggressively pursue is the court's words below it is exactly what david shore next testif aggressively pursued this contract would have never existed and the damages would have never been and i see my time is up and i'm happy to answer any additional questions that in your rooms  with a contract and that's key here we cite the investment cases as well as a number of other cases where there have been multiple breaches you cannot continue to assist a bre still be liable for intentional interference it's proximate cause ation this is clear under the case it read like to turn back now to this this but i believe to be  misstatement by qwest that it was clear to the world in january two thousand and eight that the law was clear that when free conferencing was doing with text our didn't fit within its contract it wasn't unsure of the regulatory landscape that it instituted the fifty percent rule after it announced it wasn't paying we've all decided well it's not really sure we should stop paying so let's institute has ruled to mitigate our exposure there was nothing clear in january two thousand and eight about the relationship it was uncertain and judge prior in the district of south dakota and this circuit court and this ye