case is about deception in the commercial study between sophisticated enemies but what we're really here today it's about civil procedure and whether or not a c l sufficiently play allegations to form possible claims for agency which is as their exclusive agent in the course of a three year relationship in addition we are trying to get it they are liable for their own actions of constructive fraud and that they did not tell a c l when it terminated its relationship with someone it held out as their exclusive agent this is not a simple distributor relationship as the court says or a buyer seller relationship this started in october two thousand and eight f out as its agents it is then responsible for the breaches that the c s committed as well as the torts as the court is well aware what happened here was the relationship abruptly terminated without between to the relationship which is also i will point out a question of fact that should have been left for the for the jury to decide not the court but as an a c l pled in its complaint not only was lubrizol in a special relationship with a c l because a what it had developed in the course of the field test and the fact that it had been working with a c r very closely for this long period of time and because the result had said we're going to continue to basically it's when you have a duty because of a relationship which we talked about and then by not by omission you breached that duty so by not telling another party who you have and you don't if you breach a do the you know committed some they did something wrong well if i didn't a c l asked for a contract it actually was in the process of doing so and we had planned that it was always supposed to be a three way contract in other words so we did this requires a supplier to a vendor to notify the vendors customer when the supplier cutoff the vendor that's what you're arguing you're arguing there is a duty to notify the vendors customer so what state case or haven't found it yet but if i do i'll let the car know i have not seen a class a special relationship now but the bottom line is is that libbers all n b c s had an agency relationship and we played that and we also played constructive fraud you have to know may not honor it's the understanding your honor that if i can answer your question i think the bottom line here is that lubrizol held out its agent which is who we did plead and that's who they did have a contract with how them along the way and this is our guy do business with them we're right here with everything you do with down you're doing with us and that's the answer here they help this person not just their distributor this wasn't a simple distribution distributor relationship as the court concluded incorrectly by wayne evidence we pled that we pled that we pled actually agency an apparent agency and we also played all the elements of court is well aware an agency claim requires the alleged agent to actually be doing something on behalf of the principal acting on the principles behalf such as signing a contract with the principals name on it or doing some action on the principals behalf we don't have that here in your typical case the alleged principal the defendant defends the case by saying that's not my signature on that contract i wasn't the one who did it it was this guy and then the planet comes back and says ok but there was an agency and that's how you get to the vicarious liability but the bottom line in every agency case is that you have to have an agent who is intending to bind the principal we don't have that here at all as we all we have is a situation where b c s the alleged agent was acting on its own behalf and rather than trying to hold lubrizol responsible for some action being a distributor is not enough to make you a legal agent so we have a problem with the pleadings in the first instance in that simply alleging that somebody is a sales agent an exclusive sales and marketing agent doesn't get you to the point where that person is a legal agent then on top of that what's missing from a seal's complaint is any allegation that the c s was acting on behalf of lubrizol when it committed the wrong full acts that is alleged to have committed and as this court is aware  and as as my colleague explained when she was up here all of the claims however however you call long they can all be boiled down to two buckets right there's a contract claims and there's fraud claims if you look at the contract claim and one is not alleged that same situation as you would have an employment context or an attorney client relationship or any other type of agency contacts as an agent for my client if i'm signing a contract i can sign for lubrizol and then  have rights against lubrizol and that's exactly the situation that we have here is that a c l is trying to hold my client liable for a contract or deny it argues that there's something called a parent agency yes somebody out as as our agent that agent can then sign contracts on our behalf or do some action within the scope of the agency on our behalf but we don't have that here we don't have  parent agency the where the where the principal had created an impression that some other firm a person was an agent or what has to be a lot more than an impression your honor under indiana law there are certain elements that you have to have to get to the parent authority there has to be an express manifestation by the principal that the agent is in fact that principals fraud well i don't know how to answer that question your honor because i don't i don't believe in the quasi contra scripter fraud claims but so you know what what we have here then is a situation where we don't even have the very fundamental foundations of agency because you do not have either in fact or in allegation that b c s was actually acting on the results behalf when they contracted with a c l and as i believe my my colleague stated when she was giving her presentation here the contract is between a c l and b c s she can see that i believe that there is no contract between a c l and lubrizol and that's absolutely the truth so it is one cannot be alleged because one didn't exist and so you know we're we have a situation here where we're dealing with agency claims and but all we have and all the district court saw was an allegation that us so the contract and the vicarious liability contract claims and quasi contract claim your honor they they couldn't stand and so the district court threw those out but it's also the same thing with the c s is where i'm sorry with the seals fraud claim which they played against s as fraud but it's the same problem as with the contract claims v c s then there's no allegation let alone the fact that the c s acted on our behalf when they were committing fraud in fact the if i may the suggestions is absurd questionable ethical activities that we got wind of and so we cut off our distribution channel through them what p c s did then was turn around instead of telling its customer a c l hey i can't sell you the lubrizol stuff anymore they lied and started selling a product that was something completely different without telling their customer they see up that's not done on our behalf because we're getting no benefit from that whatsoever the if if v c s is selling a product that's not ours and passing it theory or under any theory for fraud that was committed by a v c s because that is b c s his own independent actions so the bottom line here is that we just do not even have basic hallmarks of an agency claim either on the fraud side on the contract side because we don't have anybody acting on our behalf in these instances let alone doing so within the scope of the agency which again was as alleged was the sale and marketing of this specific product eighty four eleven ed the the fraud that took place here wasn't the sale of the eighty four or the marketing of eighty four eleven it was the sale of a different product apparently a fraudulent counterfeit product that the v c s continued to sell after the you just a couple of points your honor opposing counsel did say that we deny alleging pain beyond just saying which they did make the representation that this is our exclusive agent for the sale marketing and testing of the slivers all added that we had to let me of allegations beyond that that explains during the field test how they felt acted collectively as a unit the c s m and lubrizol were one and the same day the result legal department directed documents for them and goshi to deals vice versa and that situation yes but not the result but what is happening here your honor is and i think it's important to note it's it is that the result terminated the relationship as  everyone agrees because of an ethical behavior they already knew that orders had in place for this additive and that a c l expected that additive to come from lubrizol they knew this they made a conscious decision after spit have to developing a two year relationship and saying this is our person this is our agent they made the conscious decision to not pick up the phone and call i c l and say we're no longer doing business with them then as time went on they discovered that in fact  for their still to a c l their agent was actually selling now something totally different that didn't and that was not their product and saying still saying this is the lubrizol product they still do not pick up the phone and call their legal department did analysis and said you know what we don't have a duty to them and that's why we're here right right now here today we believe they do have a duty they do have an affirmative duty to pick up the phone when they develops and relationship with someone after they hold them out for as an agent over the course of two years first of all they need to be responsible for their torts and if they're no longer there an agent because of actual and apparent authority they need to terminate it that's what the law said they didn't do that and a c e o had no way of knowing to terminate one well i think that what the cases hold is that a distributor on its own cannot necessarily be an agent so just by being a distributor of a product doesn't mean you're necessarily an agent however that doesn't mean that all distributors can't also be an agent if