engage in a standard motion to dismiss the practice of columbia to get all of the looking to see has there been pleadings that are substantial that rise above the speculative level but didn't th agreement itself give them the right to terminate the agreement for any reason and they have a reason i don't disagree with your honor but i think i think you're right in the sense that there is a language of the agreement that says under certain circumstances it can and that's that's the factual dispute that still remains that we want to try is whether it was appropriate to be terminated given all the circumstances and i don't understand how we could second guess that the commitment letter says o p i see and so what judgement is not satisfied with the results of its two diligence investigation in its so replace my judgment for their judgment your judgment i don't have to decide who their judgment was even a reasonable in their sole judgment if they're not satisfied and they proffered reasons which you have not disputed why they were dissatisfied maybe those reasons wouldn't have been enough for me to cause me not to go forward with the commitment or you are maybe not even a reasonable person but it's not a reasonable person it's up to them in their sole judgment that was the commitment letter that you received that has been deemed a contract in this case and not disputed to be a contract so what i said i have to answer is that there are what is that the when you when you examine and get into the facts you see that that are that the reasons we contend that the reasons why the loan commit more was terminated are inappropriate and wrong all right we want we want an opportunity to vote what book how is that sufficient what did you grazing without your we did two things two princes site in the in the first hundred hundred allegations or so in the complaint we go through all the things that happen for the future after the commitment letter was signed and during that year  the agency was prodding pushing requiring the company to go forward all the same time telling them this loan is going to be approved there's not a problem you know don't worry about it we are going to give you the money and as a matter of fact for the last year we'll let you look back and pull that yours were no more this is what there is no doubt they misled your company over and over and they behaved badly and there's no doubt there's no the guy i guarantee you this is going to be approved but he had no actual authority and that didn't constitute a commitment on behalf of the government and in government contracts apparent authority is not enough and him giving you his personal you know commitment to approving it or whatever seeing it through and then the information from the due diligence came after that it came after that occurred there's no dispute in the timeline of this record this record that was presented below there's no dispute of the timeline the due diligence information that they acquired came after all of those other facts had occurred and that is what they based clearly and unequivocally in their assertion is they based their judgment on that and i mean i don't know i just don't understand how you've made a case in your claim in light of the undisputed facts of record i'm not saying you don't have your own suspicions about why they did it but the timeline is with the timeline is the guy who i think client got the short end of the stick there's no doubt about it you know but i think you're right but i don't know that there's a legal basis that agency's actions and just the ball right to terminate something doesn't mean that you can terminate it and it doesn't matter that you caused the situation you created the problem you did this or that but i haven't heard  the words material adverse change is this is your view that that is the question of fact that there is a lot to correct or rather we don't think there was a material adverse change we think there were things that know that that changed obviously because it was things were going on the market with changing it it was a situation where the company had done everything that it could it responded to every every direction from the agency in terms of doing something different including spending thirty million dollars of its own money and and then it was cut off but there was a material adverse train close and there there there were things going on that we'd like to debate whether there were material or not yet sure there were things going on there's no doubt about that but i mean doesn't the contract also i mean that material adverse change is be and the bottom it says or in it's sold judgment is not satisfied with due diligence it doesn't even have to be they're not satisfied because of a material adverse change that is one reason they can pull out but it seems like the last sentence that commitment letter that isn't in this dispute is this enormously broad and the that's the contract you you had that's the only contract that you had the vice president's statement that i personally guarantee this loan will be completed doesn't mean anything i mean that's just that's just a statement of a person you know it doesn't bind the government to anything i'm not sure that you're i mean i am as a matter of law i'm sure of it and so so that doesn't the fact that the vice president told you that he thought this commitment letter was going to result in a contract does not bind the government to the contract so as you didn't even allege that you're complaining that's not one of your allegations before us we we we do have an implied an implied contract can't have an actual contract an implied contract the law is clear on that you have an actual contract you cannot have both that's not a basis for creating a claim for you you just it it the situation cannot exist or an agency can push a contractor to spend its money for a here and then for any reason whether it's the right reason it was whether or not one of the questions is whether or not those are just called assertions that you get to say i think this may have happened i'm speculating but let me have discovery so i can figure out whether it's true that one of the aspects of that was the timing that  intervening of that you come in at the last minute and you say because of market circumstances except we've got a different business plan now that we're going forward with that was a major change what was a change trite that was coming from europe not from the governments right here are with with respect i think there's two sides to that story i think in the materials in our reply brief show that it was the government that said that in ac for the market changes going on there always are but the government asked for the deal to be redone from the project deal to a corporate wide guarantee so they had more security but that was the government that did that and there's documents quoted in i don't understand how that affects the fact that you came in at the eleventh hour and said things have changed in the market internationally in terms of demand excedrin so we've got a different business plan would come forward with what i'm saying is the government put that in action it's requests that we do different things that we give them a corporate guarantee instead of an individual guarantee and look what we're doing here to work we're all arguing and debating what the evidence is as yesterday and reading it ashleigh it all i saw at the very last paragraph of the supreme court ever saying you haven't met the speculative standard we're going to dismiss the case they asked  appeals to remand the case to the desperate court so that the district court could make a decision as to whether lead to a man should be granted i know you know like i was surprised when i read that but i would think that's filed makes this allegation of nefarious conduct i hope that as a conclusory statement that is not consistent with the timeline there are no plausible facts that are stated in the complaint that would allow more what more are just speculating now what more would you need in these circumstances you don't have to be if i didn't side or if an insider who is turning state's evidence so to speak came in and said that he was in a meeting of the investment committee and they said they were about to granite but they heard that the mr romney running for president when in front of the cylinder factory arguing about how corrupt  or some historical data regarding coincidence between reversing intentions to give energy loans and political situations but all that's in the complaint is i think you much of the evidence is irrelevant evidence i mean and man admissible some of that was pursuant to a motion to expand the record which you're out of already denied the entire apply brief it's based on that evidence and so really isn't even in the record much of what he said today is based on evidence that also wasn't part of the complaint or attach to the complaint so your view really technically shouldn't really be involved in the facts but if you do get involved in those fast you'll see that you're correct that much of the approvals that will be gave initially before the markets changed before they found out from the due diligence that the way that they had originally thought it could be structured it could be structured that way and result in a reasonable risk that it would be noise and said on the merits we think we can enter the commitment letter but we have to make sure the markets are good we have to look at the engineering we have to do the due diligence and we have to have absolute discretion because these are by definition high risk loans to withdraw if for any reason we are sole discretion decide you don't want to go forward with i think your honour's are also correct in pointing out that solarium was well aware of the direct coning in conditions from one who knew in the commitment letter they knew they had to spend money to get the loan they knew that it might not work out and they knew that the risk was theirs because it says they haven't the commitment letter so in ok thank you we think both sides in the case