has refused to pay my client the money it owes him because its c e o has a vendetta against him the record here is very large because we've had to refute numerous baseless defenses that the company has asserted but the relevant facts are clear in two thousand and fourteen t p g a private equity firm was about to invest three hundred and forty million dollars into sutherland in connection with that transaction settled and was required to offer mr mariano and about two hundred other directors or employees the opportunity to net exercise stock options and then sell either thirty percent or one hundred percent of the resulting shares back to sutherland at st like most participants mr narayanan entered into an agreement with thirty percent of those shares but he was getting ready to retire and he asked the company's c f o who was a close advisor and confidant of the founder controlling shareholder and c evidence of a signed agreement with respect to the one hundred percent in the record there is no in the record there is no sign one hundred percent agreement so there's no copy of a signed agreement on the record or evidence that  the agreement was signed by sutherland it's not clear in july of two thousand and fifteen roughly ten or so months after the october two thousand and fourteen transaction the emails from a person that freed max which is the accounting firm that was administering the program to mr russo who is wearing two hats here both the c f o of the company and the senior director of the accounting firm and she asked him i'm collecting all of the repurchase agreements to send to the corporate secretary for signature i see new to use is in there should i send that one and russo replied no so the inference i think is unavoidable that is latest july of two thousand and fifteen none of the other repurchase agreements have been signed yet all those other participants had been paid in october of two thousand and fourteen so it sounds like what you're saying is it doesn't matter whether there's a signed agreement the signatures are not required there are new york law about the exchange of emails constituting a binding agreement the law is quite clear and in fact with respect to the thirty percent sale which is no longer challenged  st there is a spreadsheet created by the accountants that reflect the note of a phone call from mr russo saying change from thirty percent to one hundred percent on that very same day october st two thousand and fourteen the accounting firm sends my client the paperwork with a cover e mail saying here's what you need to do you've already exercised here's what you need to do to sell a one hundred percent of the resulting shares back to my client documents back the next day not just to the accounting firm action versus russo being aware of it when the corporate secretary being aware of it it wouldn't have to be evidence of board awareness and no let me let me let me break that down a little bit ratification is in the transaction so plainly a board would approve the overall program it wouldn't be approving transaction by transaction that's not the way one billion dollars companies are run and getting back to question until we clear up this transaction matter which is the subject of the cross appeal now that is not a repudiation of the authorization to enter into an agreement that's simply the set off that's not saying we don't have a contract that saying well we have a contract we're just not going to pay you want to work this other thing out and for months this goes on mr maryon and then follows up on appeal with respect to the rule sixty motion just just a few things off the bat that there's absolutely no signed agreement for the one hundred percent and the thirty percent was in very quick succession after it was received by the that i think that had to be it had to pass muster it had to go to the board it had to at least go to develop follow to the founder of the company and the chairman even i think the strongest thing about this is section eighteen of the plan it's an ambiguous i mean the reason that we've gone down this mike russo and friedman axa group is because there's absolutely no evidence on the record that it went to the board there's no evidence in the record that the board delegated it to anybody else or under the agreement record that any of the repurchase agreements went to the board what's your response to that why would they be evidence of all these other individuals going to the board and getting approval what that is is that's a spreadsheet kept by an outside accounting for the purpose of that spreadsheet which determine how many shares may or may not be available in order to give to the investor when a private equity investor comes in and buys a large chunk of the company evidence that you have to have any evidence that the board actually approved any of these purchases we don't have a resolution or anything along those lines but the company paid these contractors or purchased contracts or there never was approved indications ratification  use dispute could a reasonable jury find from those things that indeed it was not if occasion our parents aren't you are actually starting here an authority or actual authority i think the issue here is really at the front end of this  necessary it's in the agreement in the east up play and we are we we didn't until we got the summary judgment had to reveal what our strategy was at that point on the issue heard of a case in regardless of what's in the top plan if when this becomes an issue the company continues to say it's going to pay and there's no indication that they believe the board approval is needed on the other twelve dollars individuals had board approval regardless of the stock you could have ratification i mean all i would say and that is there's some dispute as where those conversations were but at the end of the day the judgment is a summary judgment right so we assume the conversations that take place for purposes of this part of the case but they don't prove authority at the end of the day your honor because that both times especially for  it comes up and it couldn't be clearer to have this kind of objective testimony from somebody pursuing a contract he came up and said oh yeah i got there thanks a lot mr russo unlike microsoft's at oh you got it ok there's no mike russo never once on the record said eighteen you say it's an ambiguous but it seems to me that this section could be read to read to mean other things in particular that it could refer to the to the requirement of board approval in  sole discretion for a provision in the stock option plan for the company to repurchase shares acquired upon the exercise of stock options it doesn't say the administrator in its sole discretion m repurchase right shall be set forth in the applicable option agreement or rights of you or are registered stock all suggesting that this is talking about what the what the plan would provide to enable the company to reacquire the shares or to enable the holder to get the shares purchased by the company in the future on the event of that person's death or whatever the event was it doesn't seem to me to necessarily require the reading that you're giving it by any means i would only offer that the eliminating language under nd circuit law because the general term comes before the examples it's not limited to just those examples and at the end of the day the provided however it is in the option agreement it incorporates the entire plan is what i'm talking about the meaning of the clause that it's talking about something that will be that will be provided in the in the in the applicable option agreement that's anticipatory it's not talking about it's not talking about whether the company may decide hey today we're going to repurchase shares it's talking about the provisions that may be put into the stock option plan to two to authorize up on certain future events the repurchase either for the protection of the option holder or for the protection of a closely held company to keep the shares in friendly hands it i would that hasn't been argued before but i mean i think at the end of the day that would still require authority and there's nothing in the record as such suggest it would have to be an organ in the ordinary transaction processing it to the question whether board approval was required for this repurchase in our view that's where it's been relegated there's no other discretion may provide that the company may you could say that's authorizing it for future but at the end of the day there's nobody else there that it's delegated to the administrator can only amend the plan the administrator which is the board is in charge of the plan through and through terms of his father and his sister loaning money to the company he steps in neary on and to pay the bill and then ramadan himself pays r j k s money back the last sentence of that response is another role where one of the partners of our j k comes to him and says we need we desperately need some money and he is told to put it into account later on in rome and marry on it's testimony he hears the common law is selling personal property and he writes the lawyer for ramadan and excuse me for comma lesh and says look that man owes me money he doesn't separate or through it all all we get to the confession was there evidence in the record that and was receiving any any benefit any of this personal data the evidence on the record is that the personal benefit is that he needed to keep this company afloat that's the logical inference when you're posing this motion for summary judgment he has friends and relatives that he's helping to prop up he's and recruiting investors his reputation is on the line and then we have the confession that really buttress is what we said from day one at the end of the day it's crazy millions of dollars went out the door and he testified under oath he didn't know where the money went he didn't know if their contracts with homeowners that money never came back they want to point from time to time to the fact that you know there are certain representations that he disclosed it but they were at best incomplete at the end of the day he never told them about the loans he never told them about the insight he had he never told them about the fact that he had tax records from this company this money was going back and forth between kamlesh ramadan and r j k and our money sutherland global's money has never come back to this day it's out there somewhere we've never got an explanation and he's never offered an explanation as to where it is thank you have some time for me start with judge liberals question about section eighteen section eighteen the proviso of section eighteen makes clear that the only repurchased right has to be set forth in the applicable option agreement agreement as at  right referred to in here that means section eighteen doesn't give the board approval let me talk about the counter claim because a fair amount of misinformation just got dumped on you r j k is a company that as some friends to loan money to and his father loan money to them all before he was in charge of the land transaction process when he was done it was in a prior issue he was a creditor at the time these other transactions were coming the critical fact though which is not disputed is that r j k was not a party to any of the land transactions mr ramadan himself was the contract between there operating together that ramadan in our j k r operating together st of all paying the money to ramadan is three hundred thousand dollars rupees which is about which is about four thousand five hundred dollars so which goes to materiality which i'll end with the record there's no dispute the contract was with ramadan every advance contemporaneously recorded check signed by two thousand employees was sent to ramadan not r j k ramadan there is this notion that i was desperate for money when land prices were rising in the company had to change tack in november of two thousand and fourteen ramadan posted mortgages worth three hundred and eighty five million rupees he was a person of means he is not our j k he was not the counterparty what their argument is all it is is that mr narry on this lack independence that his discretion was sterilized because he was owed about one hundred and twenty thousand dollars in loans there is nothing in the record that shows that as the indian authorities have found it's entirely unreliable that confession says that mr narayanan was advancing money on behalf of sutherland to ramadan from two thousand and six to two thousand and nine the subsidiary didn't even exist during that period evidence they told the auditor year after year that they have no evidence that he got any personal benefit from this transaction no wind was registered multiple advances were made against the same parcel of land they say one instance where the two thousand and thirteen that land doubled in value prices were rising dramatically the company wanted to get all these years acquired for a fixed price it was impossible because landowners weren't selling so what happened there was an internal memorandum signed by the o and a scenario in november of two hundred and fourteen dollars reciting the fact that because prices were rising so quickly it would be impossible to get the other fifteen acres in they were going to look in another region and raman signed an undertaking say yes you sent me all these advances i'm going to give you security for them those undated checks under indian law or a form of security in addition to the promissory note in the value of land that was in one in one case because that's the one parcel that was actually registered in july of two thousand and thirteen because the landowner was holding out for more and this rising price environment and mr narayanan made the judgment to get the parcel acquired before a few months later the company said you know what it's not going to happen the values are going up too quickly the eleven acres mr required under mister supervision doubled in value in two years and ramadan gave the company mortgages which they have represented to do boy time and again that are worth more than the total amount of advances and that's why these advances which are in the nation in the nature of loans are deposits they are carried to this day on their audited global financial statements as assets secured by these mortgages the money's not missing everyone knows where the money is it went to ramadan i think we'll hear from the other side you your honor just just a few things here the money is absolutely missing nobody knows where it is nobody's been told where it is it's never been returned and the c e o and in the declaration under down below made it clear they were looking to register land or get the money back and they could just never get a straight answer out of anybody and that's why ramadan as we understand it as of sky and again the four thousand five hundred dollars it's absolutely material because at this point as if i do share he's giving millions of dollars out the door he's getting nothing in return it's a flag an inference that something is wrong it's such a small amount of money is what makes it so scary why did he need it plus why was he told to give it to ramadan he was told to give it to ramadan because they were  one operation and that's ramadan and j k i refer the court back to that in iraq dettori response and move to use testimony that backs it up when when r j kayode the money came from ramadan personally when our j k needed money it went to ramadan for the land deed in the money going across the board in this transaction this fraud it went to ramadan it's all the same the inference is southern global got taken indian authority statement by a police officer in india we don't know what influenced i'm excited or there's no argument nor has there ever been that it would be admissible interpret in the auditor statements again there's a lot of hearsay there but the important point is i think what those statements say when you really put them down and read them is we don't know exactly what went back to what money went back to move to and that was always the question what went back to mr and now we have the confession and that's when we really have an issue fact same with the memo it doesn't explain away anything it doesn't prove where the money went we don't have the money the money is missing it's absolutely missing it's ramadan never told us where it is near iana never told us where it is we've never had a homeowner that's been a done fine hey it's in our bank account that's why there's issues of fact on the beach or fight issue a duty the rule the at the end of the day that confession it's an authentic back you meant we all agree where it came from it's admissible as a statement against interest