and world war two and during the time he was serving our country he realized that there was too much glare on these air traffic control towers so he got out of world war two he started doing business with eastman predecessors in interest to develop this window e that turned into a second and third generation of business with the the bogus family where they did window film so plastic you international's window film plastic you a t c is sherry that was really the brainchild  of sonny who recently passed away this isn't really true too provide you know a lot of emotion to the argument it's more to highlight the there disabuse the court of the notion that eastman's raised that these e mails that it starts really page sixteen paragraph thirty two the first cause of action for breach of contract and there's a exchange of e mails between mr gershon's and of these men and mr burgess the pv who's here with us today but i would be after your reading it's paragraph thirty two at page sixteen of the for the first amended complaint second and a complaint so we're page sixteen of our excerpts of record reading from paragraph thirty two and i won't read all of it i'll read simply from paragraph thirty two line twenty five to the conclusion of well we have in front of us ok so me what you don't have to read it to is tell me what that terms of the contract were how much did they agree to sell to your client at what price ok yes or the e mail specifically states that that the products that will be offered and this is a paragraph one for the attached list of automotive films contain eighty five products and well that we will offer correct that we will offer so your position is that they thereby agreed to sell those to your client yes you're at what price the price list is contained and additional emails that are tracked is a subsequent priceless jester and how many as many as you want to yes and that's where the business  tell me tell me where that term comes from that term comes from the amended complaint now i think it's what you allege tell me what tell me what evidence there is that they agreed to sell a certain quantity of window product to your client and also what evidence there is what the duration of that obligation was ok the duration of the obligation asked it's again there's so many different many contracts the way it really went down is are be purchase orders and invoices in a thirty year history so they  agreed forever to fill offers orders from your client one set of waters three set of orders how many i don't believe the duration was forever i think that would be an unreasonable position to take so the duration what is your position the position is that since they've been doing business for thirty years on the film when they're making an offer to provide eighty six products and contain a price list and that offer is accepted based upon the price list we've met the notice pleading requirements to be able to take delve into the emails and the internal evidence that show what the duration but i'm just by you you're making relevant points but not in response to my question you're contending you have a contract yes your honor tell me what's the terms of the contract and in particular you tell me what price you tell me what products will you haven't told me that they've offered to buy a specific product have you we list all the specific products on us that's the those are the products that they say we're the mail says and it's alleged as a fact in the pleading that on november two thousand and twelve mr burgess confirms the terms of the agreement and that's an acceptance to tell me what see i'm still we're going back and forth with each other are the terms of the agreement if if we order these folks tomorrow to comply with the agreement what do they have to ship to you at what price and are they obligated in the future to continue to do business with your client to answer the first question the yesterday and you allege that you accepted that offer correct so did you did you agree to buy all eighty five products yes and what and what and what quantities and whatever quantities were attached to the actual price list of a minute to take discovery we would know what quantities they were going to provide because the way the business works they would simply submit we would submit purchase orders they would send the film to us and we would send it to the customer is this a one time deal in other words had you what they what they  contract was to fail to fill the specific order but thereafter they have no obligation to provide product your client that's a really good that's yeah thank you yes but the but the honest answer to that is it has to be in the context of the way the parties did business no but you are alleging a contract i understand all the nuances that go into determining what a contract is i want to know what contract you think you have with these folks must they supply your product forever must they only supply the product that that was mentioned in these emails tell me yes and in what quantities at a minimum at a minimum we played the existence of eighty six products in quantities that were attached to whatever whatever list they got in the contract my problem with the list is it says we have this much product and for each of these eighty five categories is there some point where your client says great we agreed to buy that much product in each of those eighty five categories yes that's that's what they accepted the offer where's that allegation the complaint i'm struggling with the same issues that i think are animating a lot of judge heard which is questions which is that you are allo not a promissory estoppel in law and fair competition claims those claims were given up what you are alleging is a breach of contract claims we need to know what the terms are and in looking at the four corners of the complaint the best you have is that there's a longstanding course of conduct between the parties there was a price list that was shared list that certain products that would be made available but then we don't know what was negotiated from that point on now i take it and correct me if i'm wrong as i understand your argument today the course of dealings would inform some of those questions that we're asking you today but it's not in the four corners of complaint you're here on a twelve b six appeal this missile on a twelve b six right yes we are so are you able to point in the complaint where you specified the terms of the contract other than that paragraph that outlines what they can make available to you that's not at all unusual and if you look at paragraph thirty two the supplier is basically contacting a potential buyer saying that i've got the the price list here these are the products available at these prices so that's how far paragraph thirty two takes you now what contract terms were negotiated after receiving that price list and we accept the eighty five products and we accept whatever price you deliver to us in the purchase order we will pay that price as we've been doing for thirty years that had nothing unusual sure show me where that allegation is and the complaint well i think i think the the allegation as to the history of the parties doing business together is that i'm asking you said and we said we accept that and i'm looking for the allegation in a complaint that said we accept that the  strongest place that this is accepted i believe we've highlighted that in november two thousand and twelve mr vo just confirmed the terms of the agreement there are additional e mails on products and pricing and a history of performance between the parties in the ordinary course of business he accept their offer them the purchase eighty five products he accepts that on november twenty eighth the allegation is that because in two thousand and in november of two thousand and twelve what paragraph is that a yes or that is page seventeen it's paragraph thirty two lines nine through twelve he accepts their offer to sell eighty five products here's here's my problem if the offer base we have business we look forward to doing business with you in the future here's eighty five products that we offer and you then say conclusory terms november twelve voters confirm the terms of the agreement i still don't know what the agreement is what agreement are you plastic view agrees to purchase eighty five products as it had done in the past on the terms that would be attached and a price list attached to the purchase order and it that was accepted by mr bill just on  november of two thousand is what is the is the put aside course of dealing in paragraph thirty two is that the or is that what you think the offer is i think that's yes i think that's the strongest element in that it before the court as to a specific i mean i don't know how much more specific we can get than eighty to one broad i'm sorry counsel there was a fifty year relationship lawyers were involved on both sides for a majority of that relationship why didn't the parties just enter into a traditional contract why didn't that happen because all of your argument i've yet to hear anything about legal obligations of the parties the the way the industry works from what i understand it is a just a lawyer not a film business man is it there are purchase orders invoices emails confirmation invoice sent except this money sent product shipped so they weren't operating for which leaves fifty years for the air traffic control stuff thirty years for the film they were operating with formal agreements in terms of like a this for it to film site for thirty years so there's nothing unusual in fact this e mail that cost that we allege constitutes a contract is in more detail because of the context of what was going on at t eastman acquired solutia eastman was trying to cram down a one sided supply agreement they were demanding our customer list this is actually more detail so they want to go back that because you allege that in your complaint they offer you a supply agreement on terms you don't like maybe maybe maybe quite properly don't like and you say no we won't enter into a supply agreement given that doesn't the course of conduct before that become irrelevant i mean they're basically saying we'd like to change our arrangement with you we want you and your to supply agreement you say no and then and then they stop doing business with you in fact what's wrong with that man so that quote those parts that question because they're they're very important questions this supply agreement that they propose maybe it's terrible maybe you know that it's actually very relevant because the supply agreement that he's been proposed was this is a new sheriff in town concept it was hey we want to control quality understand that they sent a supply agreement containing eighty four percent price increase in the demand for the customer understand it was one that your client shouldn't sign and my question is never sent it that's the part that's the part that they they never sent the supply agreement till after they terminated us didn't they demand your confidential customer list right that they may have demanded it but they never sent us the actual supply point is that until want to try once they demand that you enter into a supply agreement what is the previous what's the relevance of the previous course of conduct where the where you had no supply agreement i think that's taking us back to your honor's question under twenty two and four and twenty one of the commercial code i believe that twenty two zero four does look at the intent of the parties and there are certain gap fillers that are provided to fill in missing  terms of an agreement we have such a long history obviously they intended to do business together they've done it for thirty years and they still wanted to do but i said when i read that allegation is saying it's your allegation look we've been doing business with you for thirty three years on on a handshake basis if you were not willing to do that the more you want to say we want us to supply you in the future we want to supply agreement on extortionate terms i'll take your your characterization of it and your clients say no i'm not going to do that so given that doesn't that break the chain of all these previous years of custom do we that don't just go back and they surely weren't willing to continue to operate the way they had in the past they've given you notice they were willing to it  could break the chain if the right and at the executive level on the left hand right hand the left hand were were sending the same message what mr gerson was saying was we're still in business here's your peers what you're going to get i promise you chris except the other side is saying well we're really going to fire your machine tell us here customers are that is not a consistent message that brings into play prior to this i'd be outside of the record but can past if you buy this window the window shade intent elsewhere another great question not yes but they haven't been able to duplicate the same supply and part of the reason was it's the relationship going on so long their customers expected to get product the same product they've been getting for for so long so yeah and if they had told us that i don't i think i've used up all my cash also just just one last question for me do you agree that specific terms were never really nailed down now i disagree with the court respectfully i believe that it doesn't get any more specific for a notice pleading requirement in paragraph thirty two but you don't have any specific documentation that lays out every single time business there was an interaction there was an offer acceptance consideration the meeting of the minds and the obligations of the parties it seems to be all over the place and judge her words when he asked the question about the change of the eighty five or eighty six pieces or whatever you were talking about minutes ago it is just so it's confusing i'll just say if we were permitted to take discovery i believe that there would be not only evidence of every single transaction and contract i believe there's going to be internal evidence because these gentlemen all know each other ten conventions together this is outside the record but i believe this case will move with proper discovery not only in the from the contract realm yes ok if there are you making an argument that there's a contract beyond that yes and and ok and but as to that contract beyond that it's just to sell us however much we want at whatever prices you give us know it's the employee conduct of the parties i've no idea i do you know i don't want to know what you're basing it on i want to tell me tell me let's assume you win this case on the contract tell me what the contract is that applies to everything but these eighty these eighty six products at least a one time as a problem now that i just you to assume that there was a one time contract yes tell me what the contract you think is going forward i think the contract going forward be what was reasonable under the commercial code a reasonable amount of time to continue to supply product and allow what the problem is your answer is discovery will tell i believe and that's the problem with the case because the contract terms are indefinite that's that's the bottom line may i say i completely understand why the courts coming from but where i disagree is because of the long history that if we're permitted to take discovery we're going to be able to show you more than just e mails about contracts we're going to able to show you what was really going down which was a lot worse than a contract based theory we just didn't want to pursue that you haven't pursued you know words we're saying is let us conduct discovery on a contract claim and maybe we'll discover and in our trust claim that's not the way it works you have to plead a contract or plead and i trust time if you think you have won or are not fair competition but you can't say let us get discovery and we may discover things that we didn't  alleged not to get past a twelve p six motion with respect to a specific contract a one time contract to supply eighty five products at specific prices to them because your own although that is what my opponent has stated it was alleged what has been alleged is false short of even that the allegation the strongest allegation of any acceptance of an offer is that paragraph that he read in paragraph thirty two of the complaint which says then in november two thousand and twelve voters can confirm the terms of the agreement that is a conclusion reallocation that does not set forth any terms that were confirmed certainly not prices quantities duration or well just because i read thirty two it says here's a list of products that are available we're going have a price later if there's a specified number of products that are available and he says i confirm the terms it's not the greatest allegation in the world but isn't it enough to get passed will be six on you at least agree to sell us these eighty five products i don't believe so i don't believe that there is an agreement to sell eighty five products again what i stated is confirm the terms of the agreement and as as your honour's questions have so astutely reached it is impossible to tell what those terms are we well for this regime but that's why i'm struggling for a moment for this small contract out a continuing obligation to do to supply why isn't  there's there's a number of products there specified a price list later comes out and presumably if i can read his allegation broadly enough for him to say look i'll buy them at whatever the price list is why isn't it is not alleged that the price list ever came out there is a list of eighty five products and nine categories and then there's a clarification that certain of the products sought earlier in the paragraph if you look on page sixteen of the right of that record there we don't have some of them that you want not that we don't have some of them that you want but that we will not offer you those that you want and if i may clarify a point what was happening at the time  has purchased private label product from eastman on a purchase order by purchase order basement basis for a long time what is happening in china and korea is that private label product is ending up on auto glass being passed off as branded product that is a product that he's been sells it's higher quality it costs more we have exclude it doesn't record that is not in the record ok so let's stick to the record there's the record disclose why your client why your client wanted to change its form of doing business with and i'll say it is in the record in our response to him in a motion to dismiss it it's not part of the pleading yeah and it's also not now it's just what you're saying correct his was our motivation  the complaints a little interesting to me because it says something like well we were doing business for years and they said we're not going to supply you anymore unless you read of these terms there's anything in this record it discloses why that occurred nothing in the record that discloses why it occurred the price list i'm skinny the customer list is an important factor but again out of respect i won't get into what's not in them and placed in the right but the is the is the there's is there a you're looking at it i'm looking at paragraph thirty two i'm trying to understand what products are being offered there's a reference to the number but it also says and i'm going to page seventeen line nine and ten i will send you a list of top great closeout products that will be selling on a first come basis in the coming weeks then the november vote just confirmed the terms of the are the products the top great closeout products the same as the eighty five products reference for these additional products so we're trying to figure out what the terms of this one limited but ten child contract are is this yet another category of products that that's referenced from my understanding it may be but i have the same difficulty as your owners have i don't know what is being alleged as as the contract in other words there were certain e mails discussing a wide range of products some of which are identified some of which are not no price is given and all we have in terms of this potential one time contract is the conclusory allegation that the terms of the agreement were confront the terms of the relevant emails are all in paragraph thirty one it thirty two as far as i can make i mean at least there's no other no other allegation in the complaint about the e mails not regarding  counsel why why didn't the parties ever formalize the the contract just make sure it was a traditional contract i know in paragraph thirty one and thirty two we've heard a lot from opposing counsel about what he believes occurred under the circumstances why wasn't it made a little more formal and so going back to what we were doing to police the grey market for the sale of private label goods we have exclusive dealerships that  place loom are the branded product on auto glass and we try to make sure that private label goods that can be passed off as lamar do not end up on auto glass as part of cleaning house in two thousand and twelve we were asking  distributors to tell us where their products were ending up on glass in other words to give us their customer lists negotiations i as i understand it broke down with mr voges at that point he would just that committee alleges that there was an offer but they were willing to do it there was a request for for a customer list and that was a base minimum requirement of selling any private label products to any distributors particularly those who have clientele in south korea and so they can get back to what i thought was the  issue in this case and maybe it still is their central allegation is you did business with us for thirty years fifty years some one period of time and then you refused to does that course of conduct over that long period of time creates some obligation at the at the you know you're not obligated to do business forever there's a create some obligation about the way you cut off your customer as i understand it your hon there being no and particularly no means to terminate given i don't know i'm going to guess is as a legal matter if you have a course of conduct of supplying someone with something and the allegation in the complaint is you know they rely on it to do their business can you just walk in one day and say well we're done or do you have some obligation to give a reasonable period of time in which the business relationship is terminated i don't know the answer to that question i don't think enough has been alleged to by well i think that they're dead i don't think the one place where they're really good about allegations in this case is that we had this long long relationship and you cut it off now maybe you're entitled to maybe entitled to cut it off without any grace period in which they you but but so my question is do those allegations state a course of action of some sort or not i don't believe they do i believe we are entitled to cut it off as we did i think we had our reasons those were communicated to the p d i or excuse me yes p p i during the negotiations regarding potentially signing on to a new supply agreement those don't appear in the complaint however those were our bases and our bases to which we're entitled to the complaint does  allege that you were willing to continue to do business at least you told them you were willing to continue to do business on certain terms of her supply agreement if there were large price increase and if a customer list was given over that was never that agreement was never fo is that we have our reasons for making products available to distributors or not and if for example for policing a grey market which is what indeed we were doing we should be able to ask and receive information that we're entitled to that allows us to abide by our other contracts with the dealers that we have supply agreements with can we change the facts in this case and you just a little bit what if you've never made that offer to their discipline you just both sides are just rolling along doing business as usual and they put in an order to you and you say we've decided not to sell to you anymore put aside whether there are unfair business and other problems is there a breach of contract that i don't understand there to be a contract at that point there is not an implied contract to continue to supply for a reasonable time not that i'm aware anything further to add nothing further to add your own thank you very much folks like to be argument in this case the matter