## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2980

___________ Georgia-Pacific Consumer Products LP, *
* Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Myers Supply, Inc., *
* Defendant - Appellee. *

___________ Submitted: June 17, 2010 Filed: September 15, 2010

___________ Before MURPHY, BEAM, and BENTON, Circuit Judges.

___________ BENTON, Circuit Judge. Following a bench trial, the district court 1 entered judgment for Myers Supply, Inc. on Georgia-Pacific Consumer Products LP’s claim for contributory trademark infringement. Earlier, the district court granted summary judgment to Myers, on Georgia-Pacific’s claim for tortious inte rference with contractual relationship. Georgia-Pacific appeals. Having juri sdiction under 28 U.S.C. § 1291, this court affirms.

1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.I. Georgia-Pacific manufactures paper-towel dispensers and disposable paper towels. In 2002, it introduced a touch-less paper-towel dispenser, “enMotion.” The enMotion dispenser displays federally re gistered enMotion and Georgia-Pacific trademarks. Georgia-Pacific also makes a 10-inch-wide, paper-towel roll for use in the enMotion dispenser. The towels ha ve no trademarks printed on them. The packaging, however, clearly identifies Georgia-Pacific as the manufacturer.

Georgia-Pacific considers the enMotion a “proprietary” dispenser. GeorgiaPacific does not sell the enMotions, but l eases them to distributors. From the distributor, Georgia-Pacific receives a sma ll initial payment and seeks to profit from paper-towel sales for the dispensers. Di stributors may sublease the dispensers at prices they choose. The distributor is supposed to require sublessees to fill the dispenser with Georgia-Pacific towels. Whether or not the distributor makes an agreement with the sublessee, a sticker and warranty card in side the dispensers state that only Georgia-Pacific towels may be used.

Georgia-Pacific also manufactures “universal” towel dispensers–nonproprietary dispensers also bearing Georgia -Pacific trademarks. It is common practice in the industry, and not improper, to put onebrand of towels in an unleased, universal dispenser displaying a different manufactur er’s trademarks. Georgia-Pacific sells towels for use in other manufacturers’ tr ademarked dispensers; its catalogue suggests towels that replace other manufacturers’ towels.

In 2003, Georgia-Pacific leased enMotion dispensers to one of its distributors, Brown Janitorial Supply. Brown distributedthe enMotion dispensers to business and not-for-profit entities, including a Baptist churchand a school district–the end-users. Myers, the defendant in this case, is also a distributor of other paper-towels and papertowel dispensers. In 2007, Myers be gan selling a 10-inch-wide paper towel

-2-manufactured by von Drehle Corporation, the “810-B towel,” which works in the enMotion dispensers. At that time, th e enMotion was the only 10-inch dispenser widely available. Myers knew “with 99 percent” certainty that the 810-B towels would be used in enMotion dispensers. The 810-B towels are less expensive than enMotion towels and have a paper-like, “crinkly” feel, un like the more cloth-like feel of enMotion towels. The packaging on th e 810-B towels clearly identifies von Drehle as the manufacturer, although the towels themselves have no identifying marks. Because of the packaging on th e von Drehle (and Georgia-P acific) towels, purchasers have no uncertainty about the source of the towels. The purchaserdecides what kind of towel to use, actually load ing them into the dispensers.

Myers sold 810-B towels to the Baptist church and the school district. GeorgiaPacific sent Myers a cease-and-desist lette r stating that enMotion dispensers are property of Georgia-Pacific and subject to lease and sublease ag reements. GeorgiaPacific accused Myers of trademark infri ngement and tortious interference with Georgia-Pacific’s distributors and the end-us er purchasers. In reply, Myers demanded evidence of signed subleases and continued selling the 810-B towels. Georgia-Pacific did not provide Myers with subleases cont aining a towel-use restriction signed by the Baptist church or school distri ct. The evidence presented atthe district court includes duplicates of the front side of what Georgi a-Pacific claims to be sublease agreements between Brown and the Baptist church, and the school district. Also in evidence is the back side of a sample sublease that Geor gia-Pacific claims is the back side of all sublease agreements. The sa mple sublease requires the s ublessee to use only GeorgiaPacific towels in subleased Georgia-Paci fic dispensers. Georgia-Pacific did not produce subleases containing a towel-use re striction signed by the Baptists church or the school district.

Georgia-Pacific claims that Myers committed contributory trademark infringement by selling 810-B towels knowing th at they would be placed in enMotion dispensers. Georgia-Pacific also contends that Myers’s actions constitute tortious

-3-interference with the contracts requiring end- users to use Georgia-Pacific paper towels in enMotion dispensers. After a bench trial, the district court ruled for Myers on the contributory infringement claim, finding no likelihood of confusion by consumers. The district court had earlier granted su mmary judgment against Georgia-Pacific on the tortious interference claim, finding that Georgia-Pacific could not prove that Myers intentionally caused the end-users to breach sublease agreements, or that its conduct was improper.

II.

To prove contributory infringement, Georgi a-Pacific must establish that Myers continued to supply towels to its custom ers with knowledge thatthey were engaging in trademark infringement with the paper towels. See Inwood Labs., Inc. v. Ives Labs., Inc. , 456 U.S. 844, 854 (1982). Because ther e is no dispute that Myers knew that its customers were putting 810-B towe ls in enMotion dispensers, the district court’s only consideration was whether this infringed Georgia-Pacific’s trademarks.

To establish actual infringement under th e Lanham Act, a mark must be used in commerce in connection with a product in a manner that is likely to cause confusion as to the source or sponsorship of the product. 15 U.S.C. § 1125(a)(1)(A)

. The issue is whether the trademarks on a towel dispenser are “source-identifying,” meaning they identify the s ource of the paper towels inside, so that putting von Drehle’s 810-B towels in the enMotion disp enser creates a likelihood of confusion as to the brand of the towels. The distri ct court found no likelihood that purchasers or consumers would be confused and believethat the trademark on the dispenser indicates the source of the towels inside. This court reviews the district court’s determination of likelihood of confusion, which is a question of fact, for clear error. Kemp v. Bumble Bee Seafoods, Inc. , 398 F.3d 1049, 1053-54 (8th Cir. 2005). If there are two permissible views of the evidence, “the fact-finder’s choice between

-4-them cannot be clearly erroneous.” Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985).

To determine a likelihood of confusion, th is court considers six factors: 1) the strength of the plaintiff’s mark; 2) the similarity between the plaintiff’s mark and the alleged infringing mark; 3) the degree to which the allegedly infringing product competes with the plaintiff’s goods; 4) the alleged infringer’s inte nt to confuse the public; 5) the degree of care reasonably e xpected of potential customers; and 6) evidence of actual confusion. Davis v. Walt Disney Co. , 430 F.3d 901, 903 (8th Cir. 2005), citing SquirtCo v. Seven-Up Co. , 628 F.2d 1086, 1091 (8th Cir. 1980). Each case is unique, and the factors are useful onl y to the extent they answer the ultimate question – in this case, whether a trademark on a towel dispenser is source-identifying for the towels inside.

First, the district court found that Ge orgia-Pacific’s trademarks are strong. Second, it found that because the von Drehle marks are not visible once the 810-B towels are put in an enMotion dispenser, the second factor is neutral. Third, the court found that the von Drehle 810-B competes dir ectly with the enMotion towel. Fourth, relying on testimony that it was common in th e industry to “stuff” one brand of towel in a dispenser of a different brand, the district court found no intent to confuse the public, by either the end-users or Myers. Fifth, the court found a low degree of care by bathroom consumers. While this normally favors the plaintiff, the district court stated that here, this lack of care shows that the marks on a dispenser do not identify the source of the towels insi de. The court also found thatthe end-users have a highdegree of care, and are fully aware of th e source of the towels they purchase.

Finally, the district court found that there was no actual confusion in the marketplace. The court examined the e xperiences of both the end-user and the bathroom consumer, focusing on the latter. As mentioned, the end-users are fully aware of the brand of towel they stuff into their dispensers, thus there is no actual

-5-confusion as to the source of the towe l–a determination unchallenged by GeorgiaPacific. In deciding that there was no act ual confusion by bathr oom consumers, the court considered the consumer-surveys submitted by both sides, but relied more on the general industry practice of stuffing unl eased dispensers with other company’s towels.

Georgia-Pacific contends that the district court abused its discretion in discounting consumer-surveys it claims s how a likelihood of confusion by bathroom consumers. Georgia-Pacific invokes the recent Fourth Circuit decision in GeorgiaPacific Consumer Products, LP v. Von Drehle Corp. , ___ F.3d ___, 2010 WL 3155646 (4th Cir. Aug. 10, 2010). In that case, the Fourth Circuit reversed a grant of summary judgment, resuscitating Georgia-P acific’s claim of contributory trademark infringement against von Drehle. According to the Fourth Circuit, the district court erred as a matter of law by not exam ining the likelihood of confusion among bathroom consumers when determini ng the overall likelihood of confusion. Significantly, the Fourth Circuit rendered no opinion whether Georgia-Pacific had proven a likelihood of confusion by bathroom c onsumers. Rather, it held only that the evidence offered by Georgia-Pacific–the sa me consumer-surveys presented in this circuit–created a genuine issu e of material fact as to the likelihood of confusion, remanding the case for trial.

The district court here, like the Fourth Circuit, denied summary judgment; it held a bench trial. Considering all the facts, including the consumer-surveys, the district court found no likelihood of conf usion. Because the court here fully considered the evidence relating to confus ion by bathroom consumers, the Fourth Circuit’s decision is not helpful in this case.

At trial, Georgia-Pacific presented th e testimony and consumer survey of Dr. Eli Seggev. Survey participants washed their hands and then dried them with an enMotion towel from an enMotion dispenser b earing its trademarks. Asked the source

-6-of the towels, 23 percent answered that they thought the brand of the towel was the same as the brand of the dispenser. Kenneth A. Hollander provi ded expert testimony for Myers, critiquing the methodology of th e Seggev survey, and discussing his own consumer survey. According to the Ho llander survey, 11.4% of respondents almost always thought that the brand on the dispenser was the same as the towels, and 36.5% thought they were sometimes the same.

After hearing the testimony of Dr. Seggev and Mr. Hollander, the district court found that there were several methodol ogical problems with the Seggev survey, including the artificial environment, the lead ing nature of the questions, and the lack of a control. Most importantly, the court, after a thorough discussion, found that the entire premise of the survey was flawed, as this type of survey helps determine the likelihood of confusion between two mark s, not whether a mark on one product is source-identifying of a complementary unmarked product. Because this type of survey presupposes that the mark in questi on is source-identifying, the court found the probative value of the survey to be severely limited.

Georgia-Pacific contends that even with the Seggev survey discounted, the Hollander survey, by itself, establishes a like lihood of confusion, and that the district court clearly erred by finding no likelihood of confusion. See Anheuser-Busch, Inc. v. Balducci Publications , 28 F.3d 769, 775 (8th Cir. 1994) (survey showing 6% of respondents thought a spoof was an actual Anheuser-Busch advertisement and over 50% thought Anheuser-Busch approved it, was strong indication of consumer confusion); Mutual of Omaha v. Novak , 836 F.2d 397, 400 (8th Cir. 1987) (survey showing 10% thought Mutual of Omaha “goes along” with Novak’s product was strong evidence of likelihood of confusion); James Burrough, Ltd. v. Sign of Beefeater, Inc. , 540 F.2d 266, 279 (7th Cir. 1976) (survey showing 15% confusion was sufficient).

-7-While the district court noted that th e Hollander survey’s 11.4% was a small number, it did not find a lack of confusion by bathroom consumers solely on that basis. The court found more probative th e non-expert testimony of industry insiders that consistently showed it was unobjecti onable and common practice to put towels of one brand into a dispense r of a different brand. Hi ghly relevant was the testimony of Georgia-Pacific’s own regional manager reiterating that it was acceptable practice to place towels of one brand in an unleaseddispenser bearing the marks of a different brand. Further evidence is Georgia -Pacific’s own catalogue, which suggests replacement towels for other manufacturer s’ towels, including other manfacturers’ controlled brands. Georgia-Pacific ar gues that this tes timony only related to dispensers that were unleased, not to disp ensers like the enMotion. This argument is undermined by Georgia-Pacific’s own practices . Whether or not a towel dispenser is leased has no bearing on the actual confusi on by the bathroom consumer; there is no evidence that bathroom consumers of towe l dispensers know whether the dispenser they are using is leased or unleased.

The district court did not abuse its disc retion in discounting the survey evidence and crediting more the testimony from industry insiders, and thus correctly determined that there is no actual confusion by bathroom consumers. Nor did the court clearly err in finding that the trademark on a dispense r does not indicate the source of the paper towels inside, and concluding that there was no likelihood of confusion, and thus no trademark infringement.

III.

Georgia-Pacific argues that the district court erred in dismissing on summary judgment its claim for tortious interference with contractual relationship. A grant of summary judgment is reviewed de novo. IESI AR Corp. v. Nw. Ark. Reg’l Solid Waste Mgmt. Dist. , 433 F.3d 600, 603 (8th Cir. 2006). Summary judgment is appropriate if the evidence, viewed mo st favorably to the nonmovant, shows no

-8-genuine issue of material fact and that th e movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2)

.
Under Arkansas law, a claim for tortious interference with contractual relationship has five elements: (1) the existe nce of a valid contractual relationship; (2) the defendant’s knowledge of the relationship; (3) inten tional interference inducing or causing a breach of the relationship by the defendant; (4) damage to the party whose relationship has been disrupted; and (5) improper conduct by the defendant. Vowell v. Fairfield Bay Cmty. Club, Inc. , 58 S.W.3d 324, 329 (Ark. 2001).

The district court determined that Ge orgia-Pacific could not establish the elements of intentional interference and improper conduct. It did not address whether Georgia-Pacific could establish the existe nce of a valid subleas e between Brown and the Baptist church or the school district (of which Georgia-Pacific claims to be a thirdparty beneficiary), or Myers’s knowledge of such a sublease. These are close questions as no signed sublease with the towel restriction was produced. 2 Additionally, Georgia-Pacific was not cons istent in obtaining signed subleases or explaining the towel-use restriction to end-user s. This task was left to distributors like Brown. Its representative testified that he could not remember telling the Baptist church or the school district that they we re required to use Georgia-Pacific towels in the enMotion dispensers. Further, before th e sales to the church and school district, Georgia-Pacific’s management was concerne d that agreements were not being signed by end-users. After Georgia-Pacific sentthe cease-and-desist letter, Myers began asking customers ordering 810-B towels if they had sublease agreements. No customer stated that it had a sublease.

2The Fourth Circuit, examining similar facts, stated that “the record cannot support a finding that G-P had contractual relationships with the end-user customers.” Georgia-Pacific Consumer Products, LP, 2010 WL 3155646, at *14.
-9-This court, however, need not decidewhether a valid contract existed or whether Myers knew of one because the ev idence shows that Myers’s conduct was not improper. In determining whether an act or’s conduct is improper, the court should consider “(1) the nature of the actor’s c onduct; (2) the actor’s motive; (3) the interests of the other with which the actor’s conduct interferes; (4 ) the interests sought to be advanced by the actor; (5) the social interests in protecting the freedom of action of the actor and the contractual interests of th e other; (6) the proximity or remoteness of the actor’s conduct to the interference; a nd (7) the relations be tween the parties.” Baptist Health v. Murphy , 226 S.W.3d 800, 809 (Ark. 2006), citing Restatement (Second) of Torts § 767 (1979) . See also Vowell , 58 S.W.3d at 329 (“We have considered the factors outlined in the Res tatement . . . for guidance about what is improper.”).

According to the Restatement, the nature of the actor’s conduct is a chief factor in determining whether conduct is improper. The Restatement lists examples of ways an actor can cause interference, suggesti ng that depending on the circumstances, some ways are more likely to indicate improper conduct. Restatement (Second) of Torts § 767 cmt. c (1979) . As examples, the Restate ment lists physical violence, misrepresentations, threats of civil suit made in bad faith, threats of criminal prosecution made in bad faith, conduct in violation of statute, economic pressure, and violation of business customs. Id.

In this case, the nature of Myers’ s conduct indicates that it did not act improperly. As the district court found, Georgia-Pacific failed to offer sufficient evidence that Myers did anything other than sell towels to its customers. See K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC, 280 S.W.3d 1, 12 (Ark. 2008) (affirming summary judgment because appellant failed to “provide specific facts or evidence” of improper conduct). Geor gia-Pacific agrees th at the sale of 810-B towels for use other than in a leased enMotion dispenser is unobjectionable, and that the end-users’ purchase of the 810-B towel does not breach the sublease agreement.

-10-Rather, Georgia-Pacific contests only the end-users’ act of placing 810-B towels in enMotion dispensers (as Myers does not itself put 810-B towels in enMotion dispensers). Georgia-Pacific concedes that it is a common and acceptable practice in the industry to put a different brand of towe l in an unleased dispenser bearing another manufacturer’s trademarks. This is important, because if there was no sublease requiring the use of Georgia-Pacific towels , then it is acceptable to put 810-B towels in the enMotion dispensers. And while My ers knew with 99 percent certainty that its customers were putting 810-B towels in enMotion dispensers, the evidence does not show that Myers knew they were doing so in violation of a sublease. At trial, Ryan Myers acknowledged that in 2007 and 2008 there was a “99 percent” probability that customers buying 810-B towels were placing th em in enMotion dispensers. There is, however, no evidence in the r ecord that Myers knew that the towels were being placed in leased dispensers. Myer s attempted to confirm Georgia-Pacific’s cease-and-desist allegations by asking Georgia-Pacific for signed subleases. Georgia-Pacific never provided any. Additionally, Myers asked its customers whether they had sublease agreements with Georgia-Pacific, and none stated they did.

Other factors also weigh in favor of My ers. Georgia-Pacific has not suggested that Myers was motivated by any desire other than to fill the orders of its customers. Significantly, Myers explained, and Georgia Pacific has not refuted, that it was the Baptist church that approached Myers l ooking for towels to put in the EnMotion dispensers. Georgia-Pacific’s interest was to sell its towels to the end-users of the enMotion dispensers; Myers’s interest was to sell towels to its customers. As the district court said, society has an intere st in promoting competition without burdening a seller with controlling its customers’ us es of goods. Myers’s sale of 810-B towels to end-users is remote to the breach of any alleged sublease agreement because the purchase of 810-B towels did not breach a s ublease. Rather, any breach resulted from using the 810-B towels in a leased enMotion dispenser.

-11-Based on the record, the Baptist church and the school district could, at any time, return the dispensers, terminating the sublease; in fact, the church replaced the enMotion dispensers with a Bay West product. Similarly, Georgia-Pacific could, for any reason, repossess a leased dispenser. The agreement betweenBrown and the endusers was for an indefinite term and thus was an at-will contract. See Griffin v. Erickson , 642 S.W.2d 308, 310 (Ark. 1982) (explaining that an employment contract for an indefinite term is a “contract at w ill.”). Under Arkansas law, there is a strong presumption that interference with an at-will contract is not improper. See Restatement (Second) of Torts § 768 (1979) (interfering with a contract that is terminable at will is le ss likely to be improper); Mathis v. Liu , 276 F.3d 1027, 1030 (8th Cir. 2001) (emphasizing that interferen ce with an at-will contract is less likely to be improper because it concerns future , not present, business relationships); Mason v. Wal-Mart Stores, Inc. , 969 S.W.2d 160 (Ark. 1998) (a ffirming summary judgment for Wal-Mart, noting that its conduct was not improper where appellant, an at-will sales representative, was fired after Wal- Mart announced it would no longer deal with vendors who had independent sales representatives).

“[T]he real question is whether the actor’s conduct was fair and reasonable under the circumstances.” Hayes v. Advanced To wing Servs., Inc., 40 S.W.3d 800, 805 (Ark. Ct. App. 2001) citing Restatement (Second) of Torts § 767 cmt. j (1979)

. Georgia-Pacific has offered no specific facts or evidence to demons trate that Myers’s conduct was unfair or unreasonable. See K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC, 280 S.W.3d 1, 12 (Ark. 2008) (affirming summary judgment because appellant failed to “provide speci fic facts or evidence” of improper conduct). Accordingly, the district court did not err in granting Myers’s motion for summary judgment on Georgia-Pacific’s tortious interference claim.

IV.

The judgment of the district court is affirmed.

-12-BEAM, Circuit Judge, concurring and dissenting.

I concur in Parts I and II of the court's opinion. But, because I believe GeorgiaPacific has presented sufficient evidence to survive summary judgment on its claim of tortious interference with a contract ual relationship, I dissent from Part III.

Under Arkansas law, tortious interferenc e with a contractual relationship has five elements: (1) existence of a valid contractual relationship; (2) defendant's knowledge of that relationship; (3) defendant's intentional interference inducing or causing a breach of the relationship; (4) damage to the party w hose relationship has been disrupted; and (5) improper conduct by the defendant. Vowell v. Fairfield Bay Cmty. Club, Inc. , 58 S.W.3d 324, 329 (Ark. 2001). Acco rdingly, in order to survive summary judgment, Georgia-Pacific must have presented "sufficient probative evidence [of these five elem ents] permit[ting] a finding in [its] favor on more than mere speculation, conjecture, or fantasy. " Binkley v. Entergy Operations, Inc. , 602 F.3d 928, 931 (8th Cir. 2010) (quotation omitted) . The court asserts that it is not sure that Georgia-Pacific could establish (1 ) a valid contractual relationship, (2) defendant's knowledge, or (3) de fendant's intentional interfe rence. But, rather than rest its decision on any of those three elemen ts, the court disposes of the claim on the fifth element, finding that Myers's conduc t was not improper. Because I would find that Georgia-Pacific has submitted suffici ent evidence to create a genuine issue of material fact as to the existe nce of all five elements, I woul d reverse the district court's grant of summary judgment on this issue.

As a preliminary matter, and as to the fi rst element, I disagr ee with the court's suggestion that "no signed sublease with the towel restriction was produced." Ante at 9. In fact, Georgia-Pacific producedSublease Agreements signed by both Gospel Light Baptist and Fountain Lake School. In both of the signed subleases, the parties acknowledged that the sublease was subject to "Customer's Terms of Use." And, Georgia-Pacific submitted the "Customer's Te rms of Use," which states in relevant

-13-part that the sublessees were "required to use the dispensers for the sole purpose of dispensing, under [Georgia-Pacific] tradem arks, only [Georgia-Pacific's] branded towel . . . authorized for use in the dispensers and purchased from Distributor." In my view, such evidence is sufficient to estab lish the existence of a valid contractual relationship.

The second and third elements of the cau se of action are also established by Myers's own admissions in the record, contrary to the court's stated doubts. First, as to knowledge, Myers admits that it receive d a cease and desist letter from GeorgiaPacific dated July 1, 2008. In that letter, Georgia-Pacific told Myers that its enMotion dispensers were subject to subleases a nd that Myers's selling 810-B towels to the sublessees tortiously interfered with those contracts. Such evidence is sufficient to show that Myers knew of the alleged contractual relationshi p. Second, as to breach, Myers admitted that it knew with 99 percent certainty that its customers were placing the 810-B towels it was selling into enMoti on dispensers. Since Myers continued to sell the 810-B towels after receiving notice via the cease and desist letter, this is sufficient circumstantial evidence to indicat e that Myers was intentionally selling the 810-B towels in an effort to induce the e nd-users to place that particular towel in enMotion dispensers in violation of the subleases. See Stewart Title Guar. Co. v. Am. Abstract & Title Co. , 215 S.W.3d 596, 606 (Ark. 2005) (noting that the element of intent is met when the defendant knew thatbreach "was substantially certain to be produced by his conduct").

No one has disputed that Georgia-P acific was damaged by Myers's conduct. The evidence indicates that Georgia-Pacific lost sales because the end-users purchased 810-B towels instead of the enMotion towe ls. Accordingly, Georgia-Pacific has submitted evidence to satisfy the fourth element as well.

As to the fifth element–improper conduc t by the defendant–I disagree with the court's reasoning that this el ement was not met. It is accurate that "[u]nder Arkansas

-14-law, a defendant is liable for tortious inte rference only if the de fendant's interference with some relevant advantage wa s 'improper.'" Mathis v. Liu , 276 F.3d 1027, 1029 (8th Cir. 2002). And Arkansas courts "look to factors in § 767 of the Restatement (Second) of Torts for guidance about what is improper." K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC , 280 S.W.3d 1, 11 (Ark. 2008). In its analysis of the improper interference in this case, howev er, the court erroneously concludes that Myers's conduct was not, as a matter of law, improper.

Specifically, in concluding that Myers's conduct was not improper, the court states that "while Myers knew with 99 pe rcent certainty that its customers were putting 810-B towels in enMotion dispensers , the evidence does not show that Myers knew they were doing so in violation of a sublease." Ante at 11. This summation of the evidence misses the mark. As I have noted, the evidence tends to show that Myers, via the cease and desist letter, kne w that its customers' placement of 810-B towels in enMotion dispensers violated a s ublease. Yet, Myers continued to sell the 810-B towels despite being 99 percent certainthat the sublease-pr ohibited towels were being so used. In my estimation, such evidence, standing alone, sufficiently suggests that Myers had improper motives and knew that it was inducing the end-users to breach the subleases. And, as we have held, under Arkansas law, "inducing a breach of contract absent compelling justification is, in and of itself, improper." Mathis , 276 F.3d at 1030; see also Hayes v. Advanced Towing Servs., Inc. , 40 S.W.3d 800, 804 (Ark. Ct. App. 2001) ("One who induces a third person not to perform his contract with another interferes directly with the other's contractual relations. The interference is an immediate consequence of the conduct, and the other factors need not play as important a role in the determination thatthe actor's interference was improper.").

What the court essentially contends is that Myers presented sufficient evidence to suggest that its conduct was justified. In particular, th e court states that Myers (1) attempted to get Georgia-Pacific to send it signed subleases; (2) asked their customers whether they had sublease agreements with Georgia-Pacific; (3) sold 810-B towels in

-15-a mere effort to compete with Georgia-P acific; and (4) did not actively place the 810- B towels in the dispensers. Whether this evidence constitutes a "compelling justification" for Myers's conduct is not for us to decide today. This is because the fact remains that Myers continued to sell the 810-B towels to its customers with a 99 percent certainty that the customers wereusing the towels in a manner Myers knew would breach the contracts. While the fact s the court highlights may lead a reasonable person to conclude that Myer s's conduct was proper behavior, this is a question for the factfinder.

In the end, whether an actor's conduct is "improper" for the purpose of tortious interference is a question of "'whether th e actor's conduct was fair and reasonable under the circumstances.'" Hayes , 40 S.W.3d at 805 (quoting Restatement (Second) of Torts § 767 cmt. j (1979)). Based on th e evidence Georgia-Pacific has presented, reasonable people could disagree as to whether Myers's conduct was improper. "'[W]hen there is room for different vi ews, the determination of whether the interference was improper or not is ordinarily left to the jury, to obtain its common feel for the state of commun ity mores and for the manner in which they would operate upon the facts in question.'" Id. at 805 (quoting Restatement (Second) of Torts § 767 cmt. j (1979)). Accordingly, I would reverse the dismissal of the tortious interference claim and remand the issue to the district court for trial, allowing the factfinder to determine whether Myers's conduct was improper.

-16-