find that at the time of formation there was agreement by all parties on all material terms with an intent to be bound you know that's an interesting statement to make is that the key to the case there were four items that were not included if those four items were any one of more material then it seems to me that there's a problem with the case so what about the four that were not agreed to are any one of them material we believe that all four of them are but i was going to talk because of limited time today specifically about three which we believe are quite clearly material and not agreed to ok in fact we think th the language of the lower court's decision and opposing parties own pleadings and statements to find that we win this case one of the black letter law just cited a court there's some things in the record that i think really help the court according to the e e o c isn't interveners own testimony they repeatedly claim that the only time at which formation occurred was at the end of the day on september third two thousand and three we also have the c repeatedly on record over a series of months as to what they believe they agreed to on september third it has come to be known as the september fourth facts and it's contained in the record on appeal pages five thirty seven to five sorry i've forty three as you said if any one of the terms contained in that september fourth agreement were both material on september third and not agreed upon on september third there's no enforceable agreement  what is material in their answer brief and it says the parties themselves in this kind of case decide what is material it's not a you know it's not a u c c sort of case for sale of goods the parties themselves decide by their statements what is material the fourth that on september third this provision was very important to the women that would be the plaintiff interveners the low dollar amount that the women the interveners were willing to settle for was due to the willingness of my clients to to do these navajo language classes of course we always contended that was never agreed upon but it's clear from the record that given that the said the deal could break down on this and this is their own email from the e e o c to the to the to my client's former attorney that it was very important to the woman in the deal could break down i mean let me ask you question if i understand correctly the district judge never made findings as to whether or not any one of these four items that he found were not agreed to that they were material is that correct it's was typically true that he didn't do that with asking whether you made a specific finding as to materiality of the four that were not agreed to he did not do that with the navajo language classes which i just discussed it's not real clear that he did but it could be read that he did on the other provisions a specific findings we call them specific findings because they are specific i find x i find why well then i would have done i would agree that specifically now there's no finding that these were client said i will not do it was actually out on during the settlement negotiations a from the from the agreement the e e o c put that back into the green as the record indicates when they sent there their representation of what they thought they had agreed to on september fourth but the reason it's material is because they said it was material because they said it's very important to the women the money that the women on the other side agreed to take is only  we only agreed to take that little bit of money because the clients agreed or because the women agree because my clients agreed to take the navajo language classes that's that's what makes that material in your contention is that the parties subjective belief always determines materiality it's like and certainly think of situations where some provision in a contract may be trivial and the  characterization of that provision as material would in some states sense be you know absurd i can understand it with the navajo language classes that being significant but certainly the party subjective intent has to have some limits doesn't it i probably personally would tend to say no as an economist we believe in subjective value theory and that the value that someone attaches to any particular term is subjected to that person and i may value something very that someone else doesn't value at all but that would yes that would be a material term to me it may not be a material term to someone else in fact i've gone to the e e o c used own argument in this case there what they called believe their answer brief  parties themselves determine on a case by case basis through mutual extent what constitutes the material terms of any particular settlement agreement i mean i think they agree with us on th their own declaration that this was material on september third when that language was specifically rejected that's at page five zero seven five zero eight in the record what form was the characterization of the take was going to be is the press release or was it going to say something in the in the settlement own declaration in the in the in the in the pleadings in this case we wanted a gesture of goodwill because we didn't want this to be turned in to see their guilty  they're paying this money it's done it's compensatory damages and in that language the goodwill language was specifically demanded by our side it was specifically rejected by the other side and if you look at these if you look at the draft agreements that were shuttled around that day you can see where our side it actually got off and then they without any consent from our side we inserted that back and why did the parties announce they had reached a settlement agreement i mean what typically happens in my experience is they say well we're almost there we're pretty close we think we can nail down a few terms but that's not what happened in this case well our sides isn't convinced that the that happened although  i think the lower court you know there are some indications both in the record that that did occur there's some indications in the district court record that there was no settlement i think i do think that by the end of september third settlement agreement it didn't but i mean it it could have worked think the thing that bothered bothers me about this materiality issue and that subjectivity is that you have a situation where let's say the parties agree on you know nine or twelve terms that are clearly material they start exchanging that i don't want that in there and we never specifically discussed it so we don't we don't have a deal and it's material to me that's the problem that i'm having in terms of this whole material materiality analysis because it allows parties to avoid any agreement once they get the you know the hard copy well i of course think that you know those there shouldn't be an agreement unless it's truly voluntary and if they break down because they can't reach language that you know that represents the party's subjective valuations here th the then there should be an agreement the third the third material turned to which the court said the parties never agreed upon but the u s c itself stud was material was that this case would be resolved with the that it claims were material the court found no agreement on the requirement that it be resolved by a consent decree yet the see itself admitted that it was even in the working draft they claim to have distributed at the end of the day on september third they changed the word settlement agreement to consent to create we think on those three points  offers and use those to form an agreement that it's trying to enforce council is is there anything in your argument so far that turns on whether we make a choice between applying federal common law or arizona law we know i mean we do like we do like the state common law we take issue with the federal common law we think it's much easier it's much easier to prevail under the under under the state law we think that law is much better developed and should be the law per you know what some of the more recent court cases of that but we do believe we prevail under either federal common law or or under the arizona statutes if we go with the notion that somehow common terms from rejected offers can somehow form what's material and what's not material  there are several problems we think the first is that some of the inter instance sort of terms were still material on september third even if even if never agreed upon so there's still no agreement on all material terms the second problem we have with what the court did is under sharm el there's still no intent to be found i mean what the court did is it grabbed these these terms from rejected offers and counteroffers and decided to make that agreement but there's still no intent to be not to be bound one is whether there's partial performance one is whether all terms of been fully agreed upon and that's not just the material terms even minor terms to be worked out can be evidence that there's no intent to be bound absent a signed writing and then agreement and decide if writing is contemplated in this case the language of the agreement itself says that an action should be resolved by entry of this decree this decree resolves all claims there's also in this case great significance on the execution date what's going to happen next is conditioned upon when that writing is submitted to the court and signed and admitted by the court there's been great insistence on the record  signatures under the threat of sanctions even so the signatures are needed quote to get the deal done according to the other side the e e o c also issued no press release because the e e o c said they wait until the judge signs the decree before they consider the thing is done so there's there's plenty of evidence on the record to suggest that it was always contemplated by the parties that this would resolve with some signed writing submitted to the court  there's been no partial performance whatsoever the day after the settlement negotiations were held the kidman some of my clients said there's things in here that we never agreed to so there's no performance ever done  after the opinion came out or before the opinion came out was there any motion or request that the judge to make those no how would you argue then about it seemed clear from the judge's final order that these were the terms that he was going to i mean he laid out the standard and he said these are the terms that you are going to have to accept we for run completely out of time i'll just go over a couple of other things it is an agreement of the type that usually committed to writing arizona law actually requires that one of the reasons we prefer arizona state law in fact most states require according to how it can be rough it prevails almost everywhere the cases cited the other the other thing is that the statute of frauds we believe applies to the district court completely ignored our claim that the statute of frauds prevents any kind of enforcement or even bringing the motion to compel given the fact that the the agreement was never in assigned writing nor ever read into the core i'm going to say those seventy five seconds i have left to revi together a settlement agreement by looking at an exchange of documents correspondence over a period of time by parties who negotiated outside the court presence this is the settlement negotiation that was reached during the course of a single day of meeting of the minds even under that scenario could and that's why it's completely proper that the district judge although and i could continue on with the evidence that just demonstrates the parties continue to assert that they had reached a settlement not that they were moving towards a settlement or were close or had reached concepts that could form a settlement but over the course of the next few weeks the parties continued to represent to each other and to the court that they had reached a settlement and did not  magistrate's entry of a minute order on the docket on september fifth saying the parties have settled notwithstanding all that there was still the question about what material elements were assented on that day and for that the district court properly inconsistent with all of this court's precedent conducted an evidentiary hearing at that hearing the judge considered more than fifty documents and heard the testimony of seven witnesses it's not what material issues were agreed upon whether all material issues were agreed upon wrecked i'm sorry yes and the judge considering all of that evidence over the course of two days determined that the parties had reached agreement on all of the material elements of the settlement and it's true there were elements that were not agreed to that day even an element that you know sees attorney on september fourth characterized as important to the parties were in his order  say that four items that were not agreed to were immaterial he doesn't say that expressly it's implicit in his finding if you asked for a foreigner on the we did not will we moved for enforcement of a settlement which we said represented the parties agreement on material turned to ask the question again did you ask for the district judge to make a finding as to the lack of material out materiality of the four items were not agreed to after he issued that decision we did which the district court clearly understood and i i would maintain and submit to this court that the judge knew that his job and he states in his opinion that the legal standard is that he has to find whether the parties agree to the material elements of the settlement and he gets the order he says the parties did strikes me as is the problem we're running into is the council makes a pretty good argument that there is at least an argument as to whether one or more of these non agreed to findings were material and here we're at the court of appeals trying to decide what usually a district court decides and why wouldn't we just send the case back  the district judge and say please tell us whether you believe these findings are correct we can even tell him what law to apply through roman federal common law applies why would we decide that up here on appeal when it should have been or could have been discussed below i believe we cite case law in our brief although i can't tell you on which page in which we talked about the court of appeals relying on implicit finding something district court in a situation like this so i do believe that you could find that there was the district court implicitly found these to be non material that certainly was another one was that i mean with me to his order and show me the language which we're going to conclude that he actually made an implicit finding it must come it seems to me from his orders something he said or something i would submit that that language where the court says that it finds the following material terms were agreed upon by the parties and are therefore enforceable and continues on the next page after listing the nine items was specifically no agreement as to the following terms that that is by implication a finding by the district court that the four terms to which there was no agreement are not material or else the judge could not have in force just settlement agreement because you can only enforce a settlement agreement when the parties have agreed to all the material terms and we would further submit that if you look at those four terms each one of them with only if they had been enforced would have been enforced in the e e o c as favor their items that the e e o c would have wanted and for the defendant to argue that there is no settlement after defendant's counsel stood before the court and said there was on the basis of e e o c not getting for things that we at one point sought to get would really turn the whole black letter law of settlement enforcement on its head it would allow defendants to be able to get an out any time a plaintiff is willing to concede something to which the point of mistakenly thought there was agreement and later finds out there was not i think you can further look to the fact that the district judge properly found that these four items are not material by the fact that we in the testimony that the judge listened to later on the evidence cherry line twelve says court must of course the terms of the settlement where there is an agreement on the material terms now it doesn't it what what it doesn't say and cannot enforce the settlement agreement if there was a failure to agree on other material terms it would be useful if we had if we had heard that but but we didn't get it at the one twenty two three and twenty fourth you previously pointed out to us the following material terms were a great sort of leaks on stated where there are other things that were not agreed to now with respect to the four things that are numbered on page twelve which this court specifically found that there was no were material terms or fail to find they were not material or because we think that the district court's findings are clearly erroneous then what would happen if there was evidence to show that they were by giving you that promise if we concluded that these were material terms either because the district court failed to enter that finding or because we thought that just the courts finding was clearly erroneous then what i the courts fair administration of the proceedings before it and respect to the district courts discretion to manage the case before it that that would be an that that would undermine the justice of the situation because in fact you would be taking something to which the parties have agreed as you can see by the nine terms to the important elements of the dispute between the parties and taking four items to which the e let me just say that one reason one piece of evidence why this is not material is it wasn't pinned down on september third the material elements of the settlement agreement were all nailed down and agreed to by the parties by the end of the day this was left hanging it was something that mr something that was a paragraph that talked about the kidman is hiring a trainer or consultant to come in and provide training to its management on navajo culture language and traditions and in the testimony before the district court mr kidman actually talks about how he had a particular consultant in mind that he would like to hire to bring in he clearly admits that they talked about that on friday and there was a second element the talked about the kidman attending a navajo class at the community college and mar jo neil the e e o c attorney left at the end of friday believing that they had agreed to one or both of those or some combination of it and she was in fact wrong and the next day surprised by the mistaken  disconnect between the two parties understanding she used language that i would hate to have to deal breakdown over this she said it was a deal breaker she said i would hate to have the deal breakdown over this that's in her her or her good as a deal breaker and she did not that mr selden loosely characterized her they had a conversation on the phone for which there's no transcript and then there's mary jo neal's email to david silva and which she says i thought your faith through the whole thing if we don't get this but the question of materiality goes to not what did mary just say the next day when she was surprised to learn that the kidneys did not agree to this but what would she have done the day before if she learned that there was no agreement would she have walked out of that room and said fine all of the other things we agreed to we're going to just walk away from because we can't get that one element how can we possibly know since the following day she said what she  present and i would just announce it was a little premature doesn't that that's why this court defers to the findings of fact from the district judge that as he probably did in this case holder never to ensure hearing puts everybody on the witness stand the judge listened to mr o'neill testimony she listed mr cell he listened to mr seldon's testimony he made credibility determinations and then at the end of all of that two days of witness testimony and the fifty plus documents that he reviewed he made findings and determined there was no agreement on that issue and we would say by implication that it wasn't material as well you know we have to assume that during this period of time going back and forth  as a strategic move to the disadvantage of mr selden there was a lot going on that was very adversarial as they were trying to put the deal together it doesn't seem very calm i was not adversarial on september fourth and in fact the judge speculated that there was some strategic decision to delay sending the documents to mr sullum that there's actually no evidence in the records that our attorneys worked as quickly as they could they were in am and i'm i'm sure you're going to defend your attorney's conduct but the point i'm trying to make is they're trying to put together what the deal was actually was they agreed to and there's if you're trying to determine what is part of the agreement it seems to me there was a lot going on here which indicates perhaps the agreement wasn't as firm as the your lawyers thought it was well in some respects the district court is simply the stake when we learned that that was the problem in the next draft we speculated we took that out and changed it to a gesture of good well we didn't the judge mistakenly says that we continuously reinserted the term back pay which we did not do well all we know is what the district judge and he's characterizing this is very contentious that they're trying to put something together and it strikes me whether that's right or wrong that was the view he had seems it's just the opposite of the deal being done there's a continuation after you say the deal was done there's this continuous give and take with all due respect judge wallace you do know more than what the judge district judge says because you have every draft in the record and although it's tedious you and there each one labelled you can look at the handwritten draft from the end of the day of september third that mary jo neal took home with her and you can look at the draft that she e mailed to mr selden the next day around two thirty pm and you can see the language that is or is not in there and you can see that it then comes the compensatory damages line which comes out by october twenty third that draft is in there as well and we have missed on the testimony and mr selden does not contradict this that they were had cordial discussions on september fourth it was not contentious mr selden read through and read through the agreement and spotted the line navajo language provision and call that to mr neale's attention and nothing else there was no concerns that mr neal's draft was widely divergent from what the parties had discussed an op granted it contains some standard language boilerplate language that we put in our consent decrees on a regular basis that we regularly favor as not being part of the agreement or withdraw well we had already withdrawn the characterization of the settlement agreement so that before we side unfortunately had already altered that with respect to judgment in favor of in the consent decree we expressly conceded that in our closing statement at the end of the evidentiary hearing as far as i know we did not expressly address the navajo language it's only now you're saying that you don't care about that term you're willing to concede that term no i think that it was a view large of the the record when the judge was trying to determine what the deal was correct and all i'm saying is in our closing arguments i did not find an express concession on the navajo language class but i think if you look at mary jo neal's testimony it's clear from the entire testimony that although she thought it was important but raised for the first time in closing argument in effect what happens is you have a hearing your lawyer decides maybe i can't win on this issue it's not a concession and in closing argument they concede that perhaps the evidence doesn't support the inclusion of that crew vision that's that's very different from the issue of whether that provision was  or the sea believe it was material right i would you made that you made that you made an argument i thought was persuasive he said oh gosh no we we don't care about those terms so i'm trying to understand  when that when that came about and i'm sorry that i can't tell you yes point to a specific point in the record with respect to the navajo language class other than the testimony of mary jones generally you want that is the time that you had the evidence r we we didn't move to include that ok i see that my time is up i have not addressed our cross field but we would rely on a brace for that unless the court has any questions thank you very much  material the only answer can be i think i'm putting words in your mouth because we don't want this settlement any more well we could most never felt like there was a settlement completed until they got a chance to review the writing the reason you might decide that this doesn't need to go back to the district court is because you can look at the record you can see what's material and you can decide there was clear what was in the e e o c is favored as far as you know by the time we got to the end of the motion to defendants agree to rescind their current english language policy that's correct in fact that that's pretty that's pretty fundamental to the case that's not yes i mean that seems to be the whole ball game here as you're telling us now that the kid wins did not never agreed to th clearly erroneous finding by the district court we did not argue that and how can you take the position now we think that you asked the question as to whether we took issue with the other things