argument in re lehman brothers holding back versus lehman brothers special special financing presents a dispute that's been before this court a number of times not this dispute precisely but this type of dispute when should parties to a fully negotiated but unsigned settlement agreement nonetheless be held to that agreement in this case the parties after agreeing to a single term of a settlement following mediation that being the settlement amount the parties there after set about negotiating a complete written agreement to document their understanding of a full that agreement however was never signed by shannon and that's the circumstance that we find ourselves in today when you say fully negotiated that mean that there were no material terms that were left ye they both parties agreed that the the agreement at that point reflected their complete understanding and was awaiting only the execution of the parties and among the terms happily portion on that are included in that agreement based on this court longstanding approach from winston were a number of expressed reservations in which each of the parties agreed that neither of them would be banned until the agreement was fully executed that provision appears in  section four and in section five of the agreement that appeared that appeared you know in the draft agreement is later prepared but didn't people leave the where there are communications with a mediator understanding that the court the material term the amount was agreed to by both parties and that the rest was relatively routine no dispute that the parties left the mediation with the agreement that the settlement amount had been resolved but in the mediators correspondence well actually to be precise when we left the mediation actually nothing was resolved the mediator had given the parties a suggested number and gave them a period of time to consider whether they would agree to it the parties actually our client requested some additional time beyond the time the mediator originally granted but by april twentieth of last year both parties informed the mediator by email that they were in agreement with the settlement amount what's really crucial is the correspondence that the mediator sent out that day as soon as he heard that what he said imitation i would ask them to send it to sean for its review he then tells the parties to please conclude this matter promptly and advise me of any problems what is the only thing that you can take away from that is exactly what we and lehman understood at that time is no settlement absent of writing signed by both parties so i guess what i would say is if it if that if the correspondence of that day is not an express reservation it is at a minimum the kind of implicit reservation that just caught on when you describe in american express reelin or when you talked about looking at the words and deeds of the parties to understand whether even if at that moment you didn't see it expressed reservation if there was certainly enough to determine that there had been an implicit reservation winston and it's progeny stands for the proposition that you can have an enforceable agreement even though you expect that there will be a future writing to reflect that agreement you can see that there were no material terms left to be negotiated and then you really i really almost six months on morning on the proposition that the draft that came out included some reservation and in sections four and five sections four and five don't have the kind  of over arching we are not valid until there's a final written agreement they appear to be directed to the releases rather than to the entire agreement  certainly they appear to be less definite than the reservation and come march that you rely on so guarded say a couple of things first the that is very much the same argument that the district court relied on in ca's marsac in enforcing the agreement and when this court then in cast marcy overturned the district court's view it explicitly found that this language reservation like this note also you know you noted those two reservations in sections four and five the agreement is replete with other information that not only suggests i think it demonstrates conclusively that these parties intended that this agreement the four corners of this document was their entire agreement if it contains of course a very standard merger clause and integration clause makes super clear that this in and says in simple declarative sentences these parties and all these agreements contain all sorts of things let me ask you this all correct all correct was a lie doesn't lie but an interesting thing happened on the way to the courthouse the communication that we sent them on june twenty eighth said our client is completed their internal review we expect they will sign it on thursday within hours after our saying that the bankruptcy court came down with this decision on a motion to dismiss of course we didn't know when that was coming lehman didn't know when it was coming lehman would suggest to you now that there is sort of a moral hazard component here and that shit on throughout the process had been dragging its feet first of all there's nothing in the record that supports that but more to the point what would be the point of dragging our feet we didn't know when the what the bankruptcy court was going to rule and we certainly didn't know how she was going to rule and just another point we did not there was no discovery taken in the litigation of this matter in the bankruptcy court we and lehman agreed that there were no disputed facts to be resolved so we just proceeded on a record of undisputed facts because we didn't take discovery i know what we knew on the morning of june twenty eighth before that decision came down but what i don't know i don't know what lehman knew i know what we know so when lehman reached out to us on the morning of june twenty eighth with another painting saying do you know if this has been signed yet as i say you know it was in our mind i don't know what was in there and so i i know your red lights on both sides appear to agree that there was no part performance but after you had agreed that you would sign the agreement that the agreement was about about about to be signed out comes the decision dismissing  claim that removed certainly a a substantial part of what was bargained for in the in the releases are we supposed to just ignore that as though it never happened as though it didn't affect the existence of the agreement can't we can't we include that as part of partial performance and is there any case which is similar where there's such a dramatic change after the parties have agreed and they're going to sign off on the agreement such a dramatic change in what was bargained for where the courts just say sorry we'll just ignore it so i guess i would point to char mellow where mr charm mellow with his first coun stood up in open court and agreed to what deal that apparently he was ready to take wasn't until he consulted with a separate eternity frankly just changed his mind it may be this maybe it's an overly simplistic analysis but if you want to i suppose you can look at this case and saying just change their mind because the facts changed and again back to leave its moral hazard argument the way this agreement was constructed essentially because of these express reservations effectively it provided each party with an option to perform to participate until the moment that party signed it was always constructor that way lehman was under that same woman was under that term just as we were if lehman had been so concerned that we were slow rolling this at any time during our five or six weeks ago she ation they could have said that outside date on this if you don't get this executed by certain date they never did that the reason they didn't do that is they weren't thinking any more than we were about trying to game what what the back of the court was going to do no one knew when the bank score was going to rule of course how she was going to be trusted and we trust them it's a pleasure it's a pleasure dealing with them and this i will confess  honour's in the end over thirty years of practice this case put i felt you know put put us in an interesting position but we have to follow the law and the moment this decision came down and i can assure you the very first thing we did was i had some of the folks who work with me had the books and eradication to look at this before but it is stunning when you look at winston and you look at the progeny of winston over thirty years there's not a lot of areas of law where you can sorta lay a ruler straight across what the whole thing where you can find a clear reservation that ends the analysis and i would respectfully submit that this is one of those cases where you could not have one of the questions is when was that reservation articulable or at least identifiable right  absolutely and again as the cases say it does not matter when that signal is given but i would say is just as we talked about earlier in fact that signal was given in the mediator's very first communication to the parties where he determine whether or not there's been an express reservation of right not to be bound absent a formal writing you look at the communications in the conduct of the parties and if you look at the record here it's unequivocal and reserved an accepted the settlement proposal from judge maybe who was our court appointed mediator it was unconditional and if you look at all the the communications between the parties leading up to very negative on the deal it was always we have a deal we're going we're going to sign the release there was never any expression the say we reserve our right to withdraw if the bankruptcy court rules in our favor on the motion to dismiss there's nothing like that what we have here  is it's covered exactly by powell the powell case where what we had is we had a complete settlement and this wasn't simply one turn it you're you can understand you can say that it was really complete i mean there was a number that was agreed to and presumably was a fairly large number given that the claims here that's a sealed matter but where such a large number was at stake and there was no written or expressed no no expressed statement that of course we don't have a deal until we have a deal and sign and where there are things like the identification of the actual settling parties the terms of payment i mean no what you were trying to enforce payment you know the day after and the number was reached and that's because there were significant issues that may be less significant than the number but there were still items that had not been agreed to is that right why am i wrong in thinking of it that way you facts of this case i know that makes that argument but we have to understand the context of where we are right so first this mediation proceeded under the auspices of the bankruptcy court under the a d r procedures order which required each party to send a representative with full authority to bind their party to a settlement we had a mediation and then judge maybe gave us a reasoned settlement proposal we cannot disclose it we couldn't even disclosure to the bankruptcy court because it's confidential what was exchanged in the mediation but it was a reasoned opinion from judge maybe that said this is where you should settle out and this is why and the settlement terms are very obvious and judge chapman brought it up in the inner bankruptcy court opinion which is basically they pay x amount of dollars we give them a release and if you look at all the subsequent negotiations it was really implement implementing the settlement it was executing on the release that's why the release agreements called the release agreement not a settlement because we apply different different alice in the context of the settlement agreement reached in this mediation context that we do an ordinarily contract negotiation looking at kind of  ations to determine when the parties had reached a forcible agreement i think we should apply the law as it is which is basically if you look at the opinions that are being relied upon by shanahan they're negotiating the actual terms of the settlement and as judge chapman said here this is the simplest form of settlement it's not payments over time it's not anything further then you pay x money you get a release if that's so why was no action taken immediately after the number was reached and that was announced by the mediator there was actually why was there why was there five weeks of negotiation it wasn't five weeks of negotiation your honor if you actually look at the record the next day after judge may be confirmed that both parties agreed to a settlement proposal unconditionally lehman sent over the release agreement and we waited for shanahan to respond and what they responded to what wasn't on material terms it was essentially how long between the settlement or the payment immaterial to lehman what the governing law was going to be with regard to the release agreement we wanted to have new york law because this was reached in new york the agreement was in new york and it was governor and it was in court in new york but you're not saying it was immaterial i'm saying it might be material to the release agreement it's immaterial to the settlement which was full and binding as of april twentieth because this isn't a situation where you had any ongoing obligations between the parties over time such that you need to negotiate material terms but i'm not sure how i understand how you can really separate the really the settlement from the release the settlement has no value without a release i think we should go back to power honor because the as continue negotiations over the performance of the saddle meant rather than assent to its terms is different and that's what you see here there is a negotiation over the performance of the settlement and that's exactly what the release agreement was intended to do and that's why it's called the release agreement notion has asked that the court rewrite that to say it's a settlement release agreement but what it is it's an agreement on the performance of the settlement it's not an agreement through to the terms just the the district court disagreed with us we don't think that it's dispositive of the issue what form and all the partial performance here your honor is we had to provide a release in exchange for the settlement and what happen here is shanahan said we don't want to exchange electronic copies we want you to sign to originals and send them to us at the time we place those agreements in express mail to shanahan we were bound to the release we had no way to get out of it and so we performed by signing that agreement saying seven immediately upon payment you were released and within seven days we're going to file a motion to dismiss we were bound that was our only obligation under under the agreement now the district court disagreed with us we do think there's partial performance here but as i said i don't think it's dispositive how do you distinguish  cases where they were actively negotiating the terms of the settlement and if you actually look at the opinions it was open in those cases just remind me well two were the first of it was the settlement agreement that was being negotiated now what they said in that case was while they were negotiating the terms of the settlement they put in this provision that's the settlements not binding and toll both sides signed the agreement and the court found that was important here we had a complete bankruptcy court and district court agreed with us here we had a binding settlement on all material terms and when we put in a very standard merger clause and execution what what that we propose five days it's now ten days we create ten days for them to pay but it had nothing to do with assent to the material terms of the settlement we're meeting of the minds on the settlement that's completely different and that's what distinguishes the cases that shanahan's relying on those cases all show that there's a difference between implementing a formal writing to memorialize the settlement that's already been reached verse is negotiating the terms of the settlement and that's where we are right we're in the situation here which is fully supported by second circuit authority that all we agreed to do was reduce the performance of the settlement to a formal agreement to implement what we had already agreed on and you know before i run out of time you're on i do want to address one women bankruptcy was the largest bankruptcy in history the bankruptcy court had to manage thousands and thousands and thousands of counter parties and so what the court did is it implemented what's called the s p v eighty eighty o order which which basically appointed four court appointed mediators judge maybe was one of them and said when you show up at the mediation you need to have a thorough t to bind the parties and so when the judge may be said i have a proposal and everyone agreed to that that was binding on the parties it leaman all of these mediations ever to a settlement that wasn't more realistic in writing the routine settlement documentation that you see from judge maybe it's typically the release agreement and then there are other things you have to do in the bankruptcy court with regard to what any settlement ever accomplished without writing no i don't think so your honor it's a fair question but here when a court orders the parties to show up with with a representative who can bind the party and that representative says i agree to the settlement the court cannot come back and undermine the bankruptcy courts authority to require people to bind the parties when they agree to a settlement there's a policy reason here and we mentioned it in in our brief which is this heads i win tails you lose situation where  was induced into signing the agreement being bound by it and shanahan wants to back out of it now because they had a change of heart and a change of heart does not overcome a final binding agreement and that's exactly what we have here mr that this is a special context in which parties were ordered to show up with individuals who are authorized to settle and that there's an institutional interest in enforcing settlement agreements where you know we have a huge bankruptcy there are a lot of plane parties involved and so on and that maybe we apply a somewhat more relaxed standard about what the other terms are that we wouldn't ordinarily venture that was just undertaken by two parties separate from the bankruptcy  and this is the largest bankruptcy case the most complicated case that's really ever come down the pike that doesn't make it special and the fact that parties were directed to have party representatives with authority to bind at the mediation is certainly not unusual to lehman you will have seen that many times before we did have representatives from chandon two of them of flu halfway around the world to attend that mediation so we attended that mediation in good faith and we accomplished something out it least we got part of the way there because we agreed on the settlement amount and and you have agreed that there were no material terms left to be negotiated not only do agree that there were no material terms of to  the the obvious we agree all material terms were agreed including we say most importantly that the parties agreed that neither one nor the other would be but how do you tell the agreement was fully executed i do i also want to note your test card you asked the question first i'm sorry that that term on that neither side would be bound until there was a written agreement was certainly not expressed in the agreement to the terms that the mediator put out right so i would say the mediator said agreement both sides agreed what they mean it was nothing that was said at that time that had put in writing at that time no we're not actually bound until we sign off on the written agreement to two things the it's important the only term that was agreed on april following the discussions on april twentieth the only term that was agreed was just to the summit of mt term not terms and just current backing away from your yes answer to judge calls earlier question there was nothing left to be negotiated no i'm sorry when you said nothing enough to be negotiated i thought you meant after the parties had concluded the negotiation of the draft or an agreement i apologize there was plenty left to be negotiated after april twentieth and judge carney this is exactly the question you asked me something as simple as wonder they expect to get paid if you assume that we agreed as everyone agrees that we agreed on april twentieth as to what the amount would be to pay to settle we had absolutely clearly agreed to exactly nothing else including in things like when exactly were you going to pay us what if we had said well you know our ideas were  handshake of course not they know how to do this these are these are high grade professional lawyers in a complicated bankruptcy case so i need to go back to minute i understood judge codell to be asking you whether there were any material terms left to be negotiated and you said no they were no material terms that to be negotiated i think we have some confusion about when we're talking about and i apologize that our five please be happy to on april twentieth when the mediator sent his email saying i'm pappy to announce that the parties  on the settlement amount i would say all terms were still open to be negotiated then except for one and that was the settlement amount we did agree to what that would a fast forwarding to when the agreement the negotiation of the agreement was complete and le signed it there were certainly no terms left to be agreed upon and certainly different from what the bankruptcy court found or found with experience with these kinds of agreements that when there was agreement on april twentieth there were no material terms left to be negotiated because this was a plain vanilla and  settlement worked out according to regular lehman settlement terms that the parties were familiar with so you know the and i certainly took your answer to my question initially that when the party said yes to the settlement on april twentieth there were no material terms to me to go she added because all of the rest of this was plain vanilla so that's what both the bankruptcy court and the district court found now you are coming up with a litany of terms which you didn't explain before that you magnify as really material terms that would have with the next draft of the agreement so two things and again i just want to be super clear i apologize if i misunderstood your question but just to be very very clear on april twentieth we say all that was agreed with the settlement amount everything else was yet to  be resolved you know we talk about appellate judge maybe that a judge we got we got the numbers but we're going to negotiate the heck out of that maybe in six months or a year we'll get around to figuring out what really agreeing to i would say he told us that he said to laymen son of the settlement documentation and get this resolved we understood the message to be exactly what it what they understood it to be which is let's get the draft movement it was the regulars that documentation that used still a flavor right and even this agreement even this agreement requires terms you've got to negotiate the terms of the grey matter again i come back to what you said just corny how could something even if you just wanted to look at one thing timing and manner of payment i would challenge you to look at the record find anything anywhere in all the correspondence that indicates that as of april twentieth there was anything close to meeting of the minds i'm not suggesting that it was our intention to be unreasonable in the negotiations and i think you can see the way they unfolded did we work but we also didn't agree we did not agree to take that first provision as lehman sent it to us we negotiated they agreed we changed it that's fine then we had a meeting of minds on that term also important to note meet again yes it's the vanilla settlement agreement but the settlement agreement draft that lehman sent to us the very day after the mediator told us to get the draft moving on this contained the express reservation language when sort of that end to try to just you know get to take advantage of them that language was in the draft of the agreement that they sent to us and it made perfectly good sense to us that it would be in the