this appeal turns on the application of undisputed and simple legal standard to undisputed facts in a rule twelve b six contact the district court didn't discuss the standard the government's instead the court assume that it had to identify a single offer or and that it could not identify both parties as a farce the district court look or this investment we want to start looking at you we want to do due diligence presumably want to look at your you know have our counsel look at your state mines we want to our business people to look at your business and if the deal doesn't go down we are asking that we be compensated for out of pocket costs in summary yes judge parker that is well and then does the record reflect or means that the transaction was investigated the promise in question says that the expenses incurred in pursuit of the transaction will be reimbursed the allegation of the complaint which we were looking  reimbursement for professional fees or for the promise in the letter agreement is all out of pocket costs the letter agreement mentions among other things retention of counsel retention of bane and retention of  c that is spelled out in the letter letter agreement but the facts that the district court looked at were three the idea that the letter agreement was on the letter had of a c p the idea that the letter was delivered is a unilateral contract we don't contend that there's a bilateral contract we agree that there are no binding promises that woods suffice to support a bilateral contract but on the three the one issue second of contract section twenty four test whether an offer is present there are two simple requirements the first is whether there's a manifestation of assent to a bargain and the second is whether the manifestation is made so as to paid was an offer to create a unilateral contract in an offer from an offer from the defendants when they they signed a letter agreement saying that it was jointly and severally accepted and agreed and they returned that to a c p in doing so under the section twenty four standard adopted by the california supreme court in the donovan case that was a manifestation of their assent to enter into a bargain by which if the transaction was investigated and expenses were incurred by a c p that those expenses would be reimbursed one question i have really that you know lateral kind usually that then has to be accepted without any you know further performance by the offer or and here we have the conditional language throughout and we have various what i would say conditional events that have to take place so how does that on which we were on which we rely involves a contract that they will pay the expenses incurred in pursuit of the transaction it doesn't matter whether the deal goes forward whether the investment is actually ma it fair to say it's kind of like a mini contract within the broader scope i think that's an accurate way to describe the situation and it's law that says you can kind of carve out a part of something like that any unilateral contract we haven't cited a case that says that you but what we have is the section twenty four standard and that says is there a manifestation and was the manifestation made so as to justify an understanding on the other party that a bargain was invited and in this context your honor the idea of the carve out i think that it is supported when you look at what is stated to be binding in the letter agreement there are only two things that are stated to be binding their promise to pay expenses and exclusivity requirement so inherently in the letter agreement there is a carve out of sorts focused on those two items that they will offer exclusivity and that they will pay the expenses those are the only two things identified in the letter agreement is binding so i think that inherently we have a situation like what you describe judge mckeown where there is there is something there is a broader context and a narrow er contract context and there's no reason in the law why it wouldn't be possible to have a contract focused on the narrower promise we will investigate they will pay and that's this case  this under california law our responsibility is to predict how the california supreme court will rule on that issue what law do we have in california that leak we can look to to tell us that the california supreme court would approve such an approach a carve out approach from from a broader contract like case can we look to in california that would help the twenty three cal forth that at page ten adopted the basics of unilateral contract law i don't think that it addressed that specific point but in the donovan case the california supreme court did adopt the section twenty four restatement second standard and under that standard all we need is a manifestation of assent to enter into a bargain made under circumstances that justify reliance and we that based on the promise to pay expenses that appears in the letter agreement but isn't your position is that there's no we really no necessity to even get to a car value shoe that the contract pama facia authorizes you to collect these expenses that's true judge parker yes and how how does that square with the paragraph in the agreement that called conditions our obligations in this letter are subject to that and so that refers to the obligation to go forward a c p wasn't obligated to make the investigation of the transaction but the promise in the expense clause was if you do it all the expenses you incur will be paid but a c p wasn't required to do it if you want to research some time yes you're on it thank you have please the court my name is david mack and then i'm here on behalf of garden howard associates we're asking you to affirm the district court's decision dismissing this case with prejudice and for issues i would talk about first there's offered acceptance a second there's  consideration third would be promissory estoppel one fourth would be leave to a man with regard to offer and acceptance we should turn into a contract with these people the contract was they were contemplating a forty five million dollars investment in your client and what the contractors are readers specifically contemplate you correct me if i'm wrong that if they went forward and started their due diligence work and started the investigation and incurred expenses those expenses would be reimbursed even if ultimately the transaction didn't close that would you agree that is a correct statement so i think they're welsh on their contract as well they committed to by our company they committed to make a good faith effort to purchase the company and they're not willing to go to the bilateral contract standard there would be a bil contract standard here they play a good face and that would be their promise a product of good faith and fair dealing and we print made the promise that they got from us through their illusory promise to investigate purchasing our comp ask you about that it's the agreement itself if we call it a unilateral contract does contemplate that this whole thing might not happen because it basically says they get reimbursed for their expenses in pursuit you know in the transaction but in the event the transactions not consummated then you've got to put a ceiling on expenses so how does that figure in because it sounds they're like you know right up front you're going to get this money but you can't get more than x if it falls apart or doesn't happen well that's that's what the agreement says i don't see it as in the squarely in the unilateral consideration and that's why we're in you know lateral contract doctrine and unilateral contract documents are a different kind of contract you look at this actually ali case it's the can there are these are promises that were made that were not bargained for they're the master of their own offer or they could have put something in there that would have consideration and that's an important moment when i deal with clients and tell them when you do an agreement you want to be sure that you're not getting something for nothing and that's the issue here you know no records they induced us to make this promise on a claim that they would in good faith purchase our company and we made a promise and they admit that them in the contract the law of consideration is what it is and i respectfully disagree they're going to put money in escrow they could have a lot of things for consideration correct i could have been given but are you c that that your client was the promise or in the unilateral contract the promise or there is a promise in the agreement sure it will who made the party made two promises we accepted the offer right  unilateral contract that's who was the promise or i don't think there was a you know lateral contract also york because i think the process of bargaining sorry to interrupt so if the only way you prevail in this case is if we decide that there was a failed bilateral contract i think that's the way you should decide what do you lose if we disagree with you i don't feel comfortable conceding that but i'm not sure and counteroffer you have to change the agreement to me to turn to a country counteroffer we didn't make any change we accepted and that creates the contract right good morning paul swep on behalf of  patrol i think that ronson you've identified exactly the issue this is because it was a an offer that purportedly was an accepted the normal analysis would be is this an enforceable bilateral contract the district judge appropriately concluded in this is why judge parker i understand your skepticism but the conclusion is legally correct it is not an enforceable bilateral contract notwithstanding that it was accepted by sky patrol because there was a failure of mutuality of obligations th could perform or not perform they had no obligation and our only obligation was to perform that is not an enforceable bilateral agreement but the end the plaintiff as much as concede that that's why they retreat to unilateral contract and to prevail it's unilateral contract whether it's under unilateral contract theory or promissory estoppel theory they've got to turn this around and make the defendants the offer or and what the district court found is that that cannot be plausibly alleged under twelve b six because the court and plan of conceded this was appropriate analyze the terms of the letter itself and found that this was an offer that came from the plaintiff's mouth and it was not the defendant's offer so if the brooklyn bridge analogy is the analogy to go back to first year law school that that sort of is the touchstone for determining the enforceability of a unilateral contract the offer or says i walk across the brooklyn bridge and you pay me but it's not they in this case are saying will work we may not work but you must pay us so the obligations only one are run in one direction that that offer needed to come from us and when that letter is examined it's an offer that came from them and it didn't come from any in the court's order she says that to make a promissory estoppel argument they would they claim that they will show that gordon howard is the offer or turning it around and it's either one or the other is there a factual issue on that or no no your honor for this reason because under the it boss standard the letter is the touchdown and what the district court found is that this this plaintive cannot plausibly try and turn this into an offer from defendants because when you look at the letter everything about it reflects it this is the plaintiff's offer and what they're what they're offering conceded conceded it's a two of the six it's of no the nova review standard but but i would also add that the plaintiff's allegations about how to read the letter is are also entitled to no deference as for this court neither  yours yes yes one hundred percent judge parker is for support to analyze the terms of the letter but we would submit that district court was correct in concluding that an analysis of the letter reflects that it cannot be plausibly asserted that the defendants made that offer and if the offer did not emanate from the defendant's mouth it is not an enforceable unilateral contract because otherwise it could be you know i'll ship you a time guess what you have to pay that's you that's an unfor unilateral contract because they would make that the plaintiff would make that deal every day when they do the work we may not and you have to pay for and a lot of i'm sorry i'm out of time a lot of the difference in this in this situation is you're you're wearing deal and most dealers don't want don't go anywhere and a lot of the courts recognizing the realities of the business world and that's appropriate but it's also true that a lot of times the best been due diligence deals that don't go forward and and it's not the potential acquisition target that has to pay those costs but you know up to look at the consideration at the time the offer is made when the offer is made what is the consideration that's tendered at that time one hundred percent your honor i think the that touched on is the agreement and at that point in time was there consideration and i think the play if all is but conceding a lack of consideration by saying you cannot analyze this is a bilateral agreement you have to look at i unilateral agreement and if they're if they're in that world then it would be it would impose an obligation on the defendant only if the defendants were the offer or and and that's an issue that the plaintiff cannot plead around given the language of the weather that's th would you address what you proffer to the district court that somehow you would show that gordon howard was the author or how it would you do that in simple terms your honor what we do is we rely on the explicit promise they made to pay the expenses it's in the agreement so in other words it's it's the piece of paper nothing else that the court already ruled on it's the piece of paper is where the promises made your honor however there is a context surrounding that and if if we were to amend what we would do is we would add the broader context one of the things that we would allege is that as judge parker's questions suggest there wouldn't have been an investigation without the promise on which we rely that's that's the way these things get done the investment in this amount forty five that have been raised we would specifically allege that there wouldn't have been a transaction there wouldn't have been an investigation absent their promise to reimburse the expenses but that's just another way of saying they were the offer and it already and it might not your honor but what it would do is support what we have to say about the application of the restatement second section twenty four standard explaining that there's there's no doubt they made a manifestation  but there's three other things they said first there was a suggestion that a c p didn't pursue the transaction in good faith that's a defense it doesn't support dismissal of the complaint second both lawyers said there was no consideration we have a basic misunderstanding of the law here while you when i ask you whether or not there was a bilateral contract you said it couldn't be about that or contract because there was no consideration at the time the contract with tender there was no binding promise but  unilateral contract in a unilateral contract your honor the consideration that's provided by the promised sea is performance in the brooklyn bridge hypothetical walking across the bridge that's the performance  as you write yes and in this case we have one in writing and that's the last point i wanted to address the idea that there can only be one offer or has no substance to it it's just not a proper application  twenty four there might there could be more than one offer or but i do this piece of paper over looking at there is one offer henri's well actually that's not that's well you know the hypothetically there could be but you can't just say because there could be therefore we should go back and you'll end up right back where you were oh no your honor we're saying something very different first of all the district court held that there was no offer by a c p yes the district court labeled a c p the offer  but the district court held and it's correct that there are no binding promises made by a c p so how could a c p be the sole offer or if it didn't even make any binding promises and that's undisputed so on the one hand we're told a c p is the only offer or on the other we're told a c p didn't even make an offer from because it didn't follow if they think he didn't make an offer what where does that leave us in terms of contract formation where it leaves us is the written promise they made to reimburse the expenses meets the section twenty four standard for an invitation a manifestation of an ascent and the assent is if you do the investigation we will reimburse your expenses there written promise to reimburse the expenses is a manifestation of assent which was accepted under the allegations of the complaint by performance in the form of investigating the transaction it's very simple application we have your arguments in my and at this point thank you to all counsel the case just argued a c p versus sky patrol will be submitted thank you