productions i'd like to i'd like to reserve one minute for rebuttal if i may please your honour's the question here is whether there is a genuine issue of material fact regarding whether the parties intended to be bound prior to actually getting and ink signature or whether they only intended to be bound when they had an ink signature now there is more than sufficient evidence that raises a genuine issue of material fact and the evidence in fact is compelling the court below improperly acted as trier of fact fail to draw all in princes in favor of the nonmoving party atlantic for  primary exchange that you believe constitutes the evidence but there was a lot of evidence number one there was never once in any contract draft or e mail never once where the parties said the contract would not be binding until it signed the court relied on the july nineteenth e mail in saying that the parties expressly agreed to that but there was not one single mention that the parties would not be bound until a contract was signed what the what that july nineteenth e mail said was final execution of the attached term sheet which remains subject of years of corporate approvals corporate approvals are not the same as it's not it's not though it's my own little various corporate approval that's running that unless corporate approved it there would be no binding contract that's right and your honor the testimony was that number one was the person who had authority to speak for the company that everybody had said that and it was actually the same as if there were to design it's authority to deal with the closing of the agree that's the same as if they were to decide no it's not the same as the authority of sign but what it was was authority to close there's a difference between corporate approvals and signing you can convey that there were corporate approvals without saying the only way to express corporate approval is by signing the agreement and in fact here we had various statements in writing and verbally that it was approved to be to be closed for example mr kiran he testified that mr santos on that there would be corporate approvals as they went along and in fact told him there were corporate approvals as they went along in other words when there was a dispute about how to resolve it so we're good on that let's go july nineteenth and twelve july nineteenth and twentieth were absolutely pivotal on july nineteenth the parties have a couple outstanding disputed issues which they resolved on the telephone there after mr zand emailed the final version and he said to mr kieren e in light of last night's call we're all good it's all good all seems in line mr then he emailed mr beavis and he said these are affairs revision for flecked in the agreement that we reached and here's the exhibit and so we're all good now right which is another way of saying we're done right it's a reasonable inference that you're saying we're done and mr davis took it as ok so you're saying we're done and he said yes in fact we are in agreement we done we're closed now interestingly mr zanti not say whoa whoa whoa whoa wait a minute we're not we're not close yet we need we need signatures first so don't get ahead of yourself  p said that the deal would be done subject to corporate approval subsequent to that date did he ever say well now no corporate approval would no longer be necessary or any representation well along those lines what he said was what he said was yes we're all done yes we're good yes we're good to go we're going to have a great collaborative success it is a reasonable inference from those statements and that he got the corporate approvals when you put them together with mr  that they uncontroverted facts demonstrate that the understanding between the parties the go shame the agreement was that term sheet had to be signed by both parties the court both parties to sign the agreement well your honor what they did was in e mails and this happens very frequently in these remains that have been negotiated over time that they exchanged these e mails saying ok now we're done ok we're good we're good to go and let's go we're going to start making changes and we're going to start demanding that atlantis i and demanded that atlantis make changes and  give them meaningful consultation so everybody was ready to go as soon as they closed the deal with the court was relying on was that july nineteenth agreement that july nineteenth e mail which did not say fine it wouldn't be binding until signed everybody who did i'm looking at it says of course final execution of the attached term sheet which remains subject to various corporate approvals so i'm not sure that in the they need to say over and over again remember i told you that corporate approvals would still be needed well your honor it's interesting there are a couple of things number one corporate approvals are different than finding  signed corporate approvals can be obtained and communicated in many different ways one way is to say ok guys we're all good let's go another way is to say we're closed another way is to say express i now have corporate approvals it can't be the fact that saying i now have corporate approvals is the only way to indicate that you have corporate approvals it can't be the fact that the only way the parties could indicate that they in film production but in all fields in contract construction there are cases the cases are are in the median in california where the courts have held that the contract even though the parties anticipated making a written contract that they intended to be bound prior to that and part of how you can tell that they intend to be bound is how the parties acted for example here's some other and for evidence even m said that the signatures were just paperwork now the difference between there's a difference between substantively indicating that you have corporate rules which is to say we're done we have corporate approvals that's the substance and signatures could be just administrative mr zandi indicated that they were just administrative even even when he talked about the  protocol or the process a process or protocol is just administrative it is not it's not saying that it was because it was clearly contemplated you know though here it was more than just administrative but one of the one of the reasons that it was clearly contemplated and believe me your honor you're awfully busy but there are many cases many of which we've cited in our brief where the parties create we contemplated that a written agreement would be made after it but it wasn't dependent on only signatures closing the contract and that's stephany maloof columbia pictures be to toss all of those cases no three versus southern california home all of those cases fully anticipated a written contract that had signatures in fact some of those cases involved where there was just one signature where one party signed and the other didn't want to see if your minute i have one yes i would like a thank you thank you admonitions of the subject corporate approval it's not significant it's not significant because just hours before very specific approval and signature protocol had been laid out and never at any time contradicted by anyone on the atlantic side that was the e mail on the nineteenth that's right so there's an e mail on the nineteenth that goes out goes out really to everyone everyone receives it on the evening of july nineteenth mark zandi acting on behalf of i on the head of business affairs has a conversation with atlantics principal principal obviously being the b the bus is a trained lawyer the boss doesn't say to his and in that conversation and the deposition testimony would have stated otherwise if he had oh we have a signed protocol here let's change it i don't agree that that should be the protocol prior to coming to an agreement here b of us says nothing about that and we go into the next day and there are follow up e mails your honor in which the reference the same reference to is made is made in the first e mails and sends i think it's eight thirty nine in the morning on the twentieth of july twentieth and he indicates to mr carney who he is updating because mr kulkarni is in los angeles misters and then in new york and of course be bosses in paris so he is as a matter of courtesy updating carney on i had a conversation with your principal the evening before i just want to let you know i believe we are all good he says in that e mail how do we move this process along to signatures why because if you have a party who is in paris and there is going to be a sea when you're being provided by that party you need to have some means by which atlanta's signature would be coming back to iowa so it is not significant that every single e mail on the twentieth did not repeat a protocol that had been clearly established on the nineteenth why because parties don't last version and then the response to that is the final version looks fine we could i just delete it couple couple of very minor alterations yes and does that create a travel issue of fact no your honor it does not and in fact there were references by appellants counsel respect to what inferences can or should be drawn from any of the e mails that come on the twenty of them in this and that and the district court did a pretty good job of indicating beautiful relationship well till they had to walk down the aisle yes what happened i actually think it is when you look at it in context and there is a context for this i'm looking at it  we had we meaning i on had over the past four or five weeks had considerable trepidation which is expressed to atlantic about the deal these parties had never dealt with each other before they didn't know each other from adam they had no relationship there was no custom in practice they didn't know each other's moves there was a lot of uncertainty ion expressed to atlantic we have real concern we only have the right to have something called meaningful consultation and what this is going to look like we don't know what it's going to look like we don't know if we knew all that right from the beginning don't know what they didn't know as the as it proceeded into july was that accompanying the program at length and i on had a strong reaction to this euro pop music that was being used in addition there was a significant issue that it was just when you're a pop music  know it was it was music that i on believe would not be appealing to its mainstream american audience and that was part of the issue here they pick the title without consulting island if a party is supposed to be in the future providing meaningful consultation and the track record is you already ignored us you already treated us as their emails into certainly now suggested as idiots how can that's how they regarded that's how it the distrust that i on increasingly began to feel in july your honor prior to july nineteenth and twentieth was very real they had taken a cast member who we thought ion thought was very important alex kingston familiar to american audiences and unbeknown to aisle one couldn't cut a deal with her didn't tell us in til the very last minute there let it go down to the wire those things created great distrust so you come to july nineteenth into the twentieth and you actually come to a place where the business terms were fundamentally agreed to but life is just not about business terms your  we were concerned about that that's coming to be real ok and and he notes that and then they see the did the they are sent the dailies on july twentieth and the dailies over that weekend cause even greater consternation if the twentieth the twenty first or twenty second resulting then in san's e mail of the twenty fifth which says look he makes reference to corporate approvals there couldn't be a clearer continuity here on the twenty fifth and says we have a protocol you know we're still circulating this and it hasn't gotten approved yet but that aside we have a bigger problem here we have significant creative issues so we had the business terms agreed to but you know it's kind of like much like when you go to buy a car and you negotiate one one part of a couple of the go sheets with the car dealer i on is not enough know in this business not know they know what's twentieth now the first the first time we were promised dailies actually early on july they said we'll be getting dailies by mid july when production starts we don't get them until the twentieth and we view the dailies but in combination with a report on the scene that we received back from paris on july nineteenth that's what caused the consternation there was no deal made here this is not the type of case where you know the movie actor as we're appeared in the film before the deal gets signed this is the case where someone says i know we have a financial term worked out but we still have pivotal important issues of trust and it was those issues of mutual trust that prevented this deal from moving forward at that point in time well did it lead to know right from the start that all this would have to be reduced to writing and  with both parties knew and i realize i'm going to be at least both parties absolutely knew that this deal required two signatures why because from the very start the first term sheet there were there was an indication in the first term sheet that it was not binding without corporate approvals in the next seven drafts exchanged of the term sheets seven or eight every draft contain the language except in the greed and two signatures beneath that is on the ambiguous evidence of the parties intention and understanding that the way they intended to signify their approval to an agreement here was by a fixing their signatures only confirmed on july nineteenth when sands and his email confirming that the protocol was to be corporate approvals and that  represent i think certainly that's that's very or that's certainly fair you are but i think i'm understand that were instructed to be looking at not only the parties express communications but in addition surrounding circumstances and a very fair inference that can be drawn that when you have an agreement with two signatures and then the parties say where are the signatures let's get the signatures it evidences their mutual understanding thank your honour's i just want to run through very quickly a couple of important points number one interestingly with the process or protocol which was administrative was clearly intended to be administrative because the parties one was you know here in california and florida and new york and the other was in france that's different than substance but interestingly even with that protocol which by the way was set out on july twentieth and was changed from july nineteenth july nineteenth there was a corporate approval reservation of right july twentieth that same protocol left out the corporate approval and interesting lee when you set out that process for procedures it was very specific you signed then we signed there was no process think it's a normal way the business is done throughout california there are many cases in all kinds of industries in which it is very clear that a binding contract can be reached before signatures in the in the in very many using some sample you certainly you certainly can't see the product but me because ultimately it's a motion picture but but they got it and for example i own has admitted that they did not get the dailies until july twentieth because it was very clear and they knew and there was evidence that they wouldn't get the dailies until the deal was closed because people in this industry do not give dailies like you and i couldn't just get a da not what's done it's only a very closed confidential disclosure and so until you're in the circle you don't get them that was done on july twentieth mr carney for example sent out an e mail saying her a the deal is closed we're done mr ion said that they complained about the music and the title that's part of the issue that stuff was changed there were discussions about changing all of that stuff who the right to demand a change unless they actually believe that they're in an agreement who for example if you want to buy a tailor made suit you say can i see it all done before it's done i want you to make the change i want you to change the lapels etc if you're going to make a custom made suit you need to agree to the custom agent or you can make changes afterwards which they did but even with respect to alex kingston and back away dan said on july twentieth all of these issues are fixable that's on july twentieth so it was very clear that i own was indicating to ed lancy that all of these issues the music the title all of that stuff was