but we'll start with adler versus payware and when you have about a minute left i will give you one minute warning counsel thank you your honor  something but i am troubled by the waiver of this argument district court erred when it did it in its decision the mutual assent regarding all material terms to be negotiated was required in the contract to the contrary and it was well settled in the circuit that important contracts that contain open additional compensation the factual question in dispute how to calculate trading desk profits so that then the percentage can be applied to bath well thank you for your  the complaint alleges that the definition of trading profit was arrived there was clearly a factual dispute between mr other on the one hand and mister nichols on the other who was the  o as to how calculated and mr other specifically alleged that he did not have them anymore but that there was an existence of numerous e mails where they went back and forth over the calculation and there is no question about the entitlement the three point five percent was how it was a rather now i understand your argument is that the percentages is clearly established but there's a dispute between the party says to how to calculate desk trading guess hayward added additional expenses and i believe there's an allegation that the expenses went up to twenty percent of the tough the palpable and that's why there was a dispute over the numbers but this clearly a possible dispute all right but what i'm trying to get at my ultimate question is district court seemed to think that this dispute about trading desk profits meant there was intended agreement and i just want to be sure i understand your argument as to why even september th when he started there was an agreement or understanding between the parties as to how trading desk profit would be defined you have about a nominee you have about a minute left i think they could touch its application of the winsome factors and then looking at the other allegations of extrinsic evidence the the understanding's that were reached the e mails between the c f o and mr other were he specifically discussed three point five percent entitlement and there was d a question over the calculation this is why it's quite clear that discovery is required and that's all that mr as others asking for get the opportunity to seek the discovery that is in the possession of the defendant which  e following up on the telephone discussion you will be entitled to it participate in the equity plan which hadn't even been developed yet in that case judge him and made quite clear that the record that had been produced in discovery made quite clear that the agreement could never be dismissed that summary judgment which is a higher standard obviously based on you know bigness argument so i thank you you have you have three minutes four of i don't want hear from the other side between the merits question and the subject matter jurisdiction question so in order to get to the question of the amount of controversy the court st meets determine whether there is a legal entitlement and for that it recontract and that the merits question and we after you become an employee and after further discussion with you with additional terms to be mutually agreed to concerning the bonus calculation and bono here is your your colleague on the other side reliance on cases that or i'll suggest that there are sort of two layers here the st layer is i don't believe any of those cases apply where there's been a written reservation there was no written reservation and map there was no with reservation and that there were written reservations and totally should be granted the bonus but then they fired the employee and refused to pay the bone it simply because he had not received a piece of paper participation that was a ministerial  the contract here refers to a base salary of one hundred and twenty five thousand which implies that there would be something more and then it also refers to an entitlement to a bonus equity and there's some glitch there three percent point five percent you know on a motion to dismiss could could that language not be read to mean that there was indeed a meeting of the minds that he would be paid a bonus why there isn't a fact question here based on the fact that there's language in this agreement that talks as judge chin said about an entitlement to a bonus equity get three point five percent of the trading de profit which suggests there's been an understanding at least that far we have then the language that says that there is an expectation to supplement this letter with additional terms to be agreed to on the bonus calculation and targeted to the extent that mr abdul or pleads that he performed his part of the job and there were no supplemental there was no supplementing by the company why isn't there an entitlement to why isn't there a jury question is what to do well in in the absence of some further agreement that three point five percent of the trading des profits would be calculated according to industry standards generally are counting principles or whatever else but not that you get to walk away from this entirely why it's there at least a fact question as to what the claims continue to disagree over the creating best profit what will miss rather says that the formula was generally accepted accounting principles but once you take three five percent of the trading desk profit you then still need to apply a bon lead to a men because i mean i've been making myself clear as i understand it you're urging that we read this paragraph the commissioner bonus paragraph to suggest a theor what green and on any bonus entitlement until there's a supplement to letter is that correct that's what your genius to say this disagreement says yes your honor and to that well i  perplexed at that because the language about your and title meant to a bonus activity doesn't suggest that you have no one title meant until there's a supplemental letter that's why i'm suggesting to you there's at least sufficient ambiguity in this language to suggest that there there there may well have been an agreement that would be the fine points of which would be included in a supplemental letter and as there's been partial performance of the contract and that's in both the lead and the replies and i'm defending to the reply brief because we compare the performance of mr albert here to the performance of the plaintiffs in the is an employment agreement mr other fully performs he went there he started the death for the complaint he generated significant profit among others on the death that set forth in the complaint  but even paper says that that's not a question that can be determined that this very early stage of the kids based on those winston factors we think it's a very strongly leans in favor of motion to dismiss  to mr other having the right to proceed to discovery and to continue his case these are facts disputed issue and respectfully the district court heard by changing that into a question of law and dismissing the case without ever giving mr