next case on the calendar is stone partners l l c versus monster worldwide thank you very much sir it please the court at pages ten dollars thirty eight cents of its briefs monster concedes that the terminations and tail see provision of the engagement letter set out section six is quote standard in the investment banking industry and quote details the provision is unambiguously triggered by terminations upon written notice not by completion if stone engaged meant could be completed without a sale transaction and without written notice of terminations but they would be no reason why stones why monster would ever give written notice to start a tail fee that would never begin running the tail fee provision would be supportable was in order to avoid that the district court  rewrote the contract holding that the tail fee provision was triggered by completion not terminations on written notice which had never been provided there is no justification to affirm that holding rewriting the contract this was an eminent engagement stone he was not being paid for a review stone he was being paid to advise on the sale of the company or partial sales of material parts of the company and to assist monster as requested payment the stone key was triggered only by transactions unlike the general advisory engagement letter which the party same parties executed on the same day april th two thousand and twelve which had a calendar end date upon which it was completed the engagement letter at issue on this appeal had no end date but as is standard in the investment banking industry was terminable at will at any time for no reason at all upon written notice an e mail would have sufficed only material and the district court judge livingston you are on the on the of federal housing panel against this court has said time and time again that it is not appropriate for the district courts to apply simply a quantitative measure for materiality you must must give a full some analysis to qualitative measures as well the district court here did not do that at all the district court in terms of assets also hung on book value a term which does not appear anywhere in the contract and which this court has time and time again said quote book value is not ordinarily an accurate reflection of the market value of  is material in the context of this agreement yes the contract defines partial sale transaction as a sale of a material portion of the assets or operations ok or do i find when i'm looking at what is a material portion of the assets well when when the transactions publicly announced in the stock pops up sixteen percent that's an indication of materiality where the job career is thirty six percent of monsters total net income that's material where it is referred to by monster as its crown jewel that's material where it's over twenty seven percent of the reported operating income that's material we marshal all of this in our brief the pages thirty four dollars to thirty eight dollars talking about or at least i'm thinking about the latter portion sort of falls within the tail there judge and it's not it's a stock sale a chink you thought forty nine point nine nine percent of the assets of job korea monster retained fifty point one percent that was simply an accounting convention so they could consolidate on their financials in terms of control they both were partners they both had control and monster couldn't operate the business without the express consent of h and q and we go through that at length and in the brief in terms of the materiality it's keep your eye on the penny the judge divided the price in half as if it were an asset sale and it's not and he took half the price and divided that by the book value of the assets on the balance sheet and came up with three dollars if you take the full amount because it's a stock sale not an asset sale you get seven dollars but but the the bottom line your honor is that under every metric you look at this was a material transaction and of times ruled on materiality as a matter of law in the r b s case in the e c a case there are there are i can give you five cases where that this court has held as a matter of law something is materiality i believe that's true and there is one other point your honor monster commissions and paid for a fairness opinion on job korea one you don't get fairness opinions except for material transactions fee let me skip to the last point the fee is not in agreement to agree on enforceable the contract when you have a partial sale when you're engaged you don't know what part of the company you're going to sell and you don't know what the terms are going to be so the engagement letter says monster will pay stone and it's with reference to customary fees awarded in like transactions into advisor situations they refer exactly to object of criteria known in the trade now your honor judge hall in the olin versus one beacon case you said a contract is not big useless it is ambiguous only it's ambiguous only if it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the entire integrated agreement and who is cognizant of the customs practices usages and terminologies generally understood in the particular trade or business at pages ten and thirty eight they admit this is a standard industry engagement the terms that are at issue no one cognizant of the customs and practices would find an ambiguity in this terminations provision and no one would wrench the they survive terminations modification completion no one would wrench that word out of that other document and use it to rewrite a crystal clear and unambiguous germination provision may be terminated upon written notice the cases are legion that upon written notice is a term pervasively used an engagement letters in the investment banking industry judge chin when he was a district judge in the oneida case dealt with this express language in an investment banking gauge letter and said that the only way it could be terminated it was mandatory upon written notice permissive to terminate any time that will mandatory it had to be upon written notice there is no dispute about that what this district judge did and judge kelly in certain underwriters of lloyd's against convergence your honor said if the agreement on its face is reasonably susceptible of only one meaning the court is not free to alter the contract to reflect its personal notions of fairness and equity that is exactly what the district court in this case did can i ask you whether there's any argument that the fact that this is a limited purpose  provide for terminations when i say it's over and many agreements are in fits and starts ebbs and flows there are periods of pencils down there are periods of quiet that does not mean terminations nor does it mean completion you have to we're not talking about football completion of a forward pass we're talking about a contract completion  the morning may please the court my name is ryan walsh i'm here on behalf of the defendant happily monster  worldwide i think not my st point your honour's is that we don't disagree that that terminations provision is standard in some contracts the problem is it doesn't say what they say  letter and at trial they did not that suggests that completion only means transaction at trial they said they claim that it was inherent in the idea of the contract ted that this engagement letter can be completed without a sale and without written notice that is a binding concession as judge from a noted that effectively  transaction despite the fact that that's not found anywhere in the agreement and they can't point to a single word agreement but if that were considering the conduct of the parties was it was considering them because it was trying to determine what completion then in the context of this type of engagement letter in addition your honour's judge from incorrectly noted the also involved the letter of the engagement letter  the testimony is clear that the language that's in the partial trial transaction it requires additionally goshi ation by the party it says it's got to be mutually acceptable and it talks about some other things being inequity here the new york court of appeals in this case is governed by new york law in chemical bank against settler cited in our papers with reference to a similar terminations provision and five years of inactivity in the contract said at all times the company had the power to extinguish any perceived inequity it could simply observe the written terminations notice its failure to do so cannot give rise to an equitable claim that's controlling law from the new york court of appeals on this case with respect to  page fifty of his brief that is in fact the law with respect to section six of the contract which is the terminations provision when not running away from that we've quoted it and we've quoted it in every paper we filed this terminations provision is the industry standard way to end engagement for any or no reason at all at any time they did not avail themselves of that the engagement was live they then proceeded to close transactions which are in fact material which are in fact covered by the engagement and which do in fact then obligate the payment o there is no doubt about that they could have sent an email they didn't this case is very much in that regard like solid peter j solomon against a d c products there was a two and a half year period of inactivity with no terminations of the engagement the client went off with another bank and did the deal court awarded fees to the original bank or my client in position and said that the investment bank may be paid for a transaction that it never worked on is no reason for the court to ignore the plain terms of the agreement which were negotiated by two sophisticated parties that is the law that is the law that has been upheld time and time again in gage mint letters in this industry if they wanted to terminate the obligation they could send an e mail they never did and so you would in response to judge from and the portion of judge from an opinion where he similar terminations provision deals with five years of inactivity and the prolonged passage of time the prolonged inactivity was argued to lead to absurd an equitable results and the court said the new york court of appeals controlling on this case at all times the company here monster had the power to extinguish any perceived inequity it could simply have served a written terminations notice its failure to do so cannot give rise to an equitable claim and quote i submit this court is bound by the new york court of appeal statement and that is controlling on the resolution of this appea