office in atlanta that one or both of the parties had indicated that there might be confidential material discussed at the argument and that i guess you wanted the court to take some action with regards to that i'll tell you that my general feeling is that i am not going to close a public courtroom in a case like this over a fight concerning a potential settlement agree we've all read the terms of the e mails exchanged between the parties i think that you can refer to those by bullet points and tell us what you think they meant or didn't mean without disclosing any confidential materials that might be prejudicial to the parties but i just don't think it's an appropriate circumstance for me to close a courtroom to the public and and have a sealed courtroom don't we're not ask if we don't we don't decide what to try to place in the record is confidential that's for you and your colleagues on the other side to decide but having decided to do that it's not a necessary consequence that we close a courtroom to the public so you can proceed we've read all there's a limited record in this case about what you're fighting about we've read it we know what the bullet points say i thing you can refer to bullet points some of them i can't see how in the world they are confidential i understand why you blocked them all out but some of them might just the fact that you're going to do certain things that's not confidential anyway is not proprietary in any way the court first the district court below committed clear error in finding that the e mail exchanges among the parties the nine bullet point term sheet was an enforceable settlement agreement even though it is a good knowledge on the face of the agreements e mails that the term i'm sorry the face of the term sheets that their material terms and conditions to which the parties had not reached actual agreed in fact that four out of the nine bullet points are still are now subject to various the parties i don't know if it was you or the other that somebody told the court that there was a settlement is in that square one both parties had agreed before there was final agreement we're going to get to that in a second but both parties told the court told the district court on the eve of trial we have settled notice that was that yes the notice that was filed said the parties have reached a settlement and the parties would take action to finalize the settlement agreement that is and that i'm suggesting only that that begins down the road toward the courts finding because if the parties have hope we have settled that means something it's not an and i think that's really where the court erred below the court did find based on the e mail exchanges that there was an e mail exchange late at night on a friday before trial was to begin on monday the parties exchanged e mails beginning around four fifty seven pm there's a local rule to explain the the notice there's a local rule that says that if the parties don't file something within twenty four hours before the i'm sorry within the business day before the trial that court record cost may be assessed against and there was some effort to try and figure out how to give the courts in advance notice that trial would be proceeding on monday before the court went away on the weekend on and on friday so i think there  there was a homey tandem agreement and then there was a first amendment that was also which is accepted aside agreement between the parties that first amendment was the subject of the third lawsuit between the parties and was  as yes your honour's the real purpose of trying to find whether there was a contract or not is what are the intentions of the parties and the parties the courts can look to does different things to to determine that the port the court can look at in the court would take a first run of the settlement agreement now that first run means that there is going to be a very six jayne's of the settlement terms so this is the court ultimately found that this term sheet these bullet points were the operative agreement that the parties were to abide by in live with but if you look at each of the different terms including that very first one it's not clear on the face of that document what the parties intentions were with the extending the five years certainly peerless it was taking the position in the in the case three the one that was pending at the time that didn't get settled by this supposed agreement that the first amendment was no longer in effect and because of the face of that the terms of that first amendment process would not have agreed to extend the first amendment as part of settling a different case where it was taken in a completely different position in other cases pending between the parties  e mail exchanges between the parties you've got to look at the full extent of the parties remember the parties were were involved in three lawsuits at the time over there had been involved in three lawsuits one appealed to this court which we argued back in february  over very vague and ambiguous terms of contracts that none of the counsel in this case were involved in the parties weren't going to buy into other lawsuits by by simply agreeing that these nine bullet points on their face because the terms of this settlement the these exchange of e mails were vague and ambiguous and the parties didn't understand what their duties and obligations were to comply there's been a motion filed for clarification to this court because the court had  d a limited stay to preclude the parties from having to execute a court granted peerless his request in that regard there was a more typical or clarification not because this court's order on the limited stay was vague or him but because the summarily enforce first of all we believe that because of the vague and ambiguous nature of the term sheet that the court could not find that this term sheet alone is the operative agreement that the parties are bound by just had not finalized the terms on that and that's proven out by even local access as reply brief here where they still take the position in their reply brief that the non disclosure agreement should not have the night when the parties had did this e mail exchange they per they proposed a settlement agreement that didn't include bankers lenders and only included non outsiders now pyrrhus disagreed with that in people's proposed terms that were that were different than that of the very next day on april first it's clear from the actions of the party and this is where the court again made comedically or did not take full to take into full consideration what the party's actions were to demonstrate the part intent because that's all typically when you're trying to force a contract what is the party's intent and the courts will not enforce settlement agreements in various circumstances where it's clear from the from the face of the agreement and from the parties actions subsequent to the actual e mail exchanges that there is that there is a that the settlement agreement the agreement was contingent upon further actions by the parties the williams versus ingram understand that the terms of the the of agreement the e mail exchanges that the court found to be the agreement that this is what the parties are bound to that there was there vague and ambiguous and the court can look to actions both before and after the exchange of those e mails to understand what the intent of the parties were was it the intent of the parties that this would be the operative agreement that these e mail exchanges would be the terms by which the parties would be exclusively bound and it's clear that it's not the the parties did not intend this to be that term both on the face of the e mails where they say that built the plaintiffs will take a first run at the at the agreement the etc there was additional negotiations and it's clear from the plaintiff's own actions that owns their own actions that they also understood as of that night march thirty first when they sent out the proposal that there was that there were additional terms  conditions that need to be fulfilled before the parties could reach a final agreement well if you have questions i'll be happy no no you've saved all your time for rebuttal thank you thank you very much court amends ernest meyers i'm here with lee marcus here representing the apple e's blitz telecom consulting l l c in local access l c the crux of this case has to do with one simple word and that word is agree when you're talking about a settlement of a case what the court has to do is apply contract law or plying contract law contracts require mutual assent and as the court is very well aware mutual assent while people talk about it in terms of a meeting of the minds it really is  the basic terms of the sheet have to be definite enough to enforce right because if if you and i settled a case and the bullet point said we agreed to enter into a distribution agreement in the future that would not be definite enough to enforce right because heaven knows what that disagreement would look like absolutely the points have to be definite all case they were definite and if there was anything in the bullet points that said this settlement is contingent upon us entering into another agreement or this settlement is not done until we do so that would be a very different story than what actually happened in this case the parties spoke on the telephone all throughout the day on friday of the record reflects and at around four o'clock or four thirty they had come to an agreement that agreement was purely verbal based on discussions and what happens at that point was a resist it was a suggestion made that a notice a settlement be and counsel for the appellant has said no we're not going to file a notice of settlement until we actually memorialize what we have talked about what our settlement is in writing at which point there was this exchange of emails counsel for the apple lea sent over an email with seven bowl points counsel for the appellant sent back a couple of modifications to two of them and added a couple of more bullet points there was then an agreement on everything with the exception of the very last item just because there was a clarification as to who was paying for the for the jury costs and the question was ok is this it are we agreed and the response comes back clearly and unequivocally agreed  that point it was after that that the notice a settlement gets filed it wasn't filed before because there was this discussion around four thirty that says we're not filing the notice a settlement until we have agreed on these terms in writing and while it may have been approved a little bit earlier the court can take judicial notice of the docket which will indicate that notice a settlement was not filed until after the last e mail and at that point in time if the that there wasn't a settlement that we weren't done that there was something more to do where's the objection where is telling the court wait a minute they filed this notice a settlement but but we're not settled there's more to do there was none of that there never has been any more of and so what happens is after the settlement is completed the parties do what parties generally do following this this was a settlement it was done it was negotiated the parties were involved in talking to their  lawyers there are some e mails that go back and forth from the lawyers so what happens after that the parties will come to memorialize the settlement with the documents going to be signed by the parties that doesn't say that we're not done with the settlement that says that we're going to do a memorial docket there are terms that would need to be set forth with regard to implementation when the payment going to be made who's going to be made to those kinds of things that doesn't change the fact that there was a settlement put in place the arguments the opponents are making as well after after march thirty one there was some discussion about other things that could have been added to the document and whether language could be put in there that would change the material terms of the nine ball points and what the record reflects is when that started to happen counsel for the apple e's came back and said no no no we have a settlement we are going to you know go right by the settlement and ultimately the documents that were eight i don't recall the letter i apologize for it but in one of the exhibits there was an n d a which specifically then says bankers and accountants because that is what mr kelly put in the e mail in all term it is it is a term that is commonly used to discuss people of the like like type and kind of bankers accountants people of that sort it's not bankers and accountants and circus cl i don't know if it's a it would be economists lawyers i think had to be put in there because the lawyers were aware of the terms of the settlement they were integral in it i think every non disclosure agreement at least that i issue which has to do with was this term there in forcible in other words if the contract gets entered into if the n d a is entered into and it says bankers accountants etc and at some point there is a question as to does it include economists does it include potential investors and one side says yes and one side says no at that point in time there is an actual case or controversy under article three and someone can either file a deck action seek some recognized the parties in the in these cases have had disputes mostly arising out of the appellant's positions they are taking which are pointed out in the brief that every time there  something put in writing their position is lots ambiguous we don't know what it means we have no idea what it means and so therefore we need to have a court intervention of it and whether or not this goes back with regards to what does it cetera mean whether it does or whether it doesn't they're going to continually take the position that no matter what language is in there they don't know what it means and it's ambiguous i mean make sure you understand what all this means in practical terms because you said that if there are legitimate disputes about for example the form that the n d a is supposed that creates a live case or controversy under article three and someone can file suit right no that's not what i said your honor what did you say or what i said was that if there is an n d a which says bankers accounts etc which is exactly what the bullet point said and exactly what appellant agreed to yes that if they have some question as to the scope of that or what it is that that means then that may give rise and it may not give rise to some sort of a problem in the future that's a hypothetical problem the courts and i was not hypothetical this is going to happen it's going to happen it's as it will rain in south florida in the summer this is going to happen the only question is how and when but here's what i want to make sure that both of you understand because if if the district court isn't forcing the settlement agreement any further disputes are not going to be run of the mill deck actions they're going to be motions for what oh there could be could ten motions and it's exactly right contempt for both of you and so if you're wrong on the n d a and he's wrong on which agreement gets modified contempt for you contempt for him you guys want to go down that road your honor i don't think that any of the parties want to go down the road that they have gone down willing to do it but they have in the past expressed a willingness to do it and don't necessarily want them to avoid more power to all of you and god be with you while you're on i understand that the problem here though is that the parties were trying to resolve a very contentious piece of litigation they spent a lot of hard work trying to get it resolved they did get it resolved the appellant's agreed that it was resolved and yet here we are arguing over whether or not it was resolved usually in cases where there is motions to enforce settlement the court is forced with looking at one letter from one lawyer and one letter with another lawyers and they're not the same as i was there actually some sort of an agreement here that isn't what we have here here we actually have one list of both pointed terms and both sides saying yes this is what we agreed to and they are an ambiguous terms and they can be enforced in the court in fact when it looked at the emails it looked at what the history of the what the parties were because as you indicated this judge is well aware of what's been going on between these he took a look at it and said objectively there is an agreement here and it was clear to the  judge that the terms were sufficiently definite and clear and the judge rejected any kind of argument that peerless had after the fact gone back and said wait a minute we're not entirely sure of the scope of what it is that we agreed to and the issue of an ambiguity or an alleged ambiguity with regard to the scope does not affect whether or not an agreement was put into place if that was the case then there never any kind of a breach of contract case has ever been brought in any court or the parties are arguing over the meaning of a term one side would say wait a minute this contract should be voided ab initio it should be we should have complete rescission because there was never any kind of an agreement and that is not what state of the law is and that is not what actually happens in this case this contract this settlement agreement was entered into it was agreed by both sides there was no equivocation  cases have been cited by peerless with regards to the issues of whether or not a settlement was entered into our posit in this case a lot of those cases talk about lawyers not having authority they talk about the parties specifically stating that different things had to be done before the settlement would be effective and none of that happened in this case this case was settled and we have now been fighting over this settlement of this case for the better part of the of a year and a half and local access and bullets are in a position where they have not been able to go ahead and move forward with things as a result of the fact that you know this case should have been settled there was going to be a jury trial what happened on monday the parties were going to argue about all kinds of things and none of that was able to happen so based on the record as a part of the court yeah please respect for the order the district  would just ask if the court would entertain if it is appropriate a motion that the audio recording of the oral argument be placed under seal and if so if the court would not post it online and give the parties forty eight if something were to come up in the rebuttal than we would make that request if it doesn't then i would agree with first of all to respond to a couple of bits that mr meyers made the nine bullet points that were done e mails not really the product of a lot of hard work by the parties it was something that was thrown together by the parties the very last minute not to make not to point out that that should be dispositive of the issue but i think just to point out that it's not the product of hard work it's not a complete document it's not a complete agreement it says so on the face of it secondly with respect to the v a this is kind of an let me talk about the release first there was a release i don't think that's confidential that the parties release each other proposed to in the e mail exchanges that the there are two sections of the release bullet point two and bullet point eight significant claims that were actually pleaded in existing claims local access has taken the position that what the parties intended with bullet point eight was that it not only include those actually pleaded but also all claims that would relate  to the release of language that the plaintiffs have proposed that local access and lets the plaintiffs have proposed are much more expansive than what peeress believes are covered by the bullet point eight and even if you include a bullet point t o one z the ones that you agree are definite enough although it doesn't answer the overall question but the ones that you agree are definite enough are five six and nine yes right those there aren't any issues with those not those are not all to refute what mr myers may have said they say in their pleading that page thirty two of their reply brief that the nondisclosure agreement that they are propose did all did not alter the material terms of the settlement which prohibit disclosure to outsiders so again i think mr myers and local access claim that pyrrhus is being unreasonable in its construction of some of the terms but clearly in the face of the non disclosure terms sheet would prohibit would permit disclosure to certain people outside there is disparate disagreement about who that is most important though is that when mr myers  about supplemental proceedings rosenbaum i think you mentioned contempt they felt three motions to contempt against peerless below because peers didn't comply with the terms of their of the term sheet and and one of them the most recent one the court with respect to the n d a found that peers had not violated a clear and unambiguous order and that was done in the fact that there are two different signed agreements neither party has signed the other person's