that there was no need to get the mind set that right yes judge and i'm here to argue that the dischord did abuse of discretion because the district court's conclusion that there was no settlement agreement was unreasonable the so much agreement independent i didn't say that i was not going to perform the settlement agreement if the lease was was not included in the written agreement i merely said that i believe it should have been there that settlement of the is contingent doesn't that made but that was post settlement agreement because the of the summit was reached on june twenty fourth and accepted their munich settlement offer these things happen all the time while the written agreement is memor release from the insurance it made it clear that that if that the offer to settle in their view didn't relate to that that you never backed up well said they never asked me to that was that's the thing be the a rejection and the counter offer of the original offer which was accepted on june twenty fourth there was no rejection there was no counteroffer the offer and acceptance were to definable events the offer on june twenty fourth and the acceptance was made day off i'm sorry was made on june twenty third and the acceptance was made on june twenty fourth so they did not last two or three weeks and that's when the release clause became an issue really two weeks after the  entirely separate and apart i mean you just said you were reaching out to get something more right but that has done as does the material in this case just because the releases the release clause of this insurance eve can certainly free to argue here and you're doing so quite effectively but you can't testify here and said so i'm trying to listen to what you're saying and distinguish in you that you know you're saying it's not material as i started with i  mean we are left with the record of what people said at the tom yesterday and just say that the startlement just contingent on the full release you know i don't i don't see how one can walk away from it just does not have the same meaning the same way as if we said the release was ours are inherently material that's not the same as to say that the material isn't there a lot so where we thing the district court abused its discretion in considering it that way y made a finding that at the settlement contemplated a formal settlement agreement that would have been an assumption that under sumption at this point judge but even if the settlement agreement was contemplated it would have had to be o'malley first as to your question about the court's finding that there had to be an agreement and i guess we would submit that once again it was mr mckee yassky who provided the term that require a settlement agreement in what he terms of his acceptance e mail he also includes language that says to our side of the case please prepare draft the quote unquote main terms should be an proceeds to list six terms so a formal written settlement agreement was contemplated at the outset between these parties and it was contemplated in part because that's exactly what mr  a court analysis and your analysis really seem to differ to some extent i mean that this the court really said there was no final settlement until you had a written document and that and after that then the parties couldn't reach a meeting of the lin making that argument we in effect conceded that there was a settlement agreement in order for it to be repudiated we do not agree with that the position as mr mccance q calls it that was asserted by mr hobson certainly was not binding on judge mills judge mills was free to look at the facts and it was reasonable to come to determination as you say that there was never a settlement agreement before this court that is our first and foremost position that it was reasonable it was not an abuse of discretion for judge mills to find that there was no settlement agreement and we rely on some other facts that have not yet at least been discussed morning that i'd like to take just a brief second point out in addition to the language the settlement is contingent on full mutual releases which is at a seventy two we would also point out that in mr mchugh nazis e mail we can use the terms i'm sorry the the june twenty fourth e mail which is at eight thirty eight when he says that the main terms should be and he goes on to list them that's nothing more than a proposal he's saying i think the main or material terms should be as follows and he puts those six points down that's sent to our side of the case mr hobson looks at those and constructs a settlement agreement and release and send that back over he does not agree as to those six terms so what happened from the outset here is the parties began to negotiate by draft parties use the writing as a way to frame their negotiations in addition further confirming mr mccance keys requirement for a final formal settlement agreement that included full neutral releases document a forty two he says without reciprocal releases settlement would be quote the void of finality in other words there would be no settlement without full mutual releases in support of the reasonableness of the decision below we take the position that as you said judge ramallah there never was a meeting of the minds here because there never were full mutual releases and we certainly never offered a release of the insurance company case as a result there was never any settlement agreement and that's why what judge mills did it was reasonable and in our view correct in other point it was made morning is that the release term was not material we certainly agree with the point that it was very material to thermionic thermionic who was never interested as shown in i believe the document that was being referred to side to do that your honor i think that you can look at the abbott case which seance which says in illinois that material released terms are inherently material and that was the case here so if it's material to either party material i would argue yes you it's material to the parties material but in this case it was a material term to both parties but i mean your friend argues that what you should have done it say look you don't really mean this you know you don't really want this so why don't we just go forward without it and you never asked him whether he would go forward with that is that a fair  we proposed only that he release thermionic from the patent false marking claim there was no mention of the insurance company lawsuit that was as you described a separate matter to us and our client was never interested in releasing or releasing them from the insurance company losses so what he's asking is that we go above and beyond that we start essentially anticipating that he's going to make this argument and gild the lily so to speak and explain to him ahead of time that it's a the important essential material turned us now it was always that way it was that way from the outs we don't believe there was ever a settlement agreement to be repudiated but if there was he's never repudiated to this day the term full mutual releases is still a point of contention between these parties that's still an outstanding issue that position has never changed so therefore there's never been any repudiation where he said ok i'll go back to before where it was you know at some point time with was june twenty four or some other period of time there's never been any sort of looking questions from the court by way of conclusion we do maintain that what was done below is reasonable and correct were questions ok thank you well just like to address your question judge human i don't know much of what happened with the insurance case i just know that i was named as an on the party and i was released by the insurance company after having signed a release did not on the quickly say that ok here is the terms that you have to include in the written agreement otherwise we don't have a cell phone now those were mere suggestions to get the work started and therefore there was no material by either party now the release clause must be made material either in the offer or in the acceptance but it has to be made material by the parties before the offer and acceptance which form the contract there's no dispute that there was an offer there  what would you have gone forward with the thought of in the absence of any releases at this point i don't know judge but i guess we'll never know because we did we didn't get to the point ok