he and others answered into an oral agreement with prudential the essence of the oral agreement was that the parties first words should form a venture capital of up to two hundred million dollars the basic division of responsibility was sat down shill agreed to provide fifteen million dollars toward the institutional part of the fund agreed to provide any shortfall to an additional fifteen million dollars for the institutional part of the fall and and in addition to that  was to be a retail part of the fund and money for the retail part of the fund was to come from high net worth investors which prevent the rosenbluth role and the role of one other key principle person who is not a party to this case was to find investment worthy companies make the investments and monitor the investments and report on them to the various investors he promised to do things which could then show promised to do what i just described and that was the essence of the transaction the parties negotiated this agreement over a curried of months there were some open issues remaining shortly after that meeting who can show underwent a serious up he feel the person in charge of the basic part of prudential which was to prudential which we received in discovery show that about three weeks later on october twenty seventh prudential put the project on hold it did not inform once things went on hold nothing ever got on track despite efforts by dr rosenbluth to salvage the deal by making contacts with the new people and others to deal never g heavy losses now the case came to the trial court on a motion for summary judgment by prudential on summary judgment of course the evidence of the  summary judgment would have been should have been denied the trial court however granted some reach zero chance in favor of prudential citing for essential reasons i would say the most serious reason even though it wasn't the first reason that the lower courts cited was that no reasonable jury in the trial courts for you could find that there was a binding contract and that is a fair starting point dr rosenbluth submitter did that collaboration at the trial court level setting forth what he said with the terms of the oral agreement i suggest to this court that if those terms were in writing signed by the parties there would simply be no question but that there was a contract and if this court agrees with me on that  proposition then it follows the fact that it was oral rather than in writing makes a binding contract there was strong evidence that even prudential thought there was a binding contract because shortly after this october fourth meeting which i mentioned earlier mr picker the person who was the key negotiator on behalf of  documents for pay or not was anticipated for example a private placement memorandum needed to be prepared the structure that the parties had agreed to involve the creation of certain entities state management company a limited partnership or general partnership so the answer to question your honor is yes those documents were being prepared but those documents which were incomplete or going never never got completed w of the oral agreement were in park performance if you will of the oral agreement and were independent of the oral agreement in the sense that the fact that they weren't prepared and even assuming there were some open terms in those  on hold this so the agreement to your client seeks to enforce in the ball the expenditure of substantial sums of money to that if that is that is correct they were like two hundred million dollars involved in in starting the venture capital fund the venture capital fund itself was to be in the range of two hundred million dollars which was to be expenditure but that was to be invested in  investment worthy companies and that is the heart of what hopefully would yield a very serious profit for the for the investors aren't  of this type involving these kinds of monies reduced to writing normally your honor my best answer to you is no even though it's billion dollars in compensatory damages which was upheld on appeal that's an example of a situation where there was far more involved than here in which in which a jury and a court on appeal beyond the issues which hadn't ago been negotiated in the preceding months were were resolved and sure and it was shortly after that that the emails that i referred to earlier by prudential were written saying of this type of are only made in writing this to volbeat testified to that he was a principal on this or rosenbluth side that in twenty seven years of work in the industry had never seen an agreement for the formation of a rely on that fact and to rely on the complexity of the transaction dr rosenbluth testified that the put this deals together you needed the three managers that was rosenbluth vol brown they had to form a general partnership the general partnership had to run a limited liability company and a limited liability company was going to be a general partner of a partnership that would raise the money and invest the money and helping that money would be raised pursuant to a cry of the placement of securities by the limited partnership those are all undisputed fa and it defies reality to suggest that that type of structure with that many moving parts could be decided in a meeting on october fourth in which two of the principal just simply made a mistake or didn't read the case because if you read that case it is fundamentally different in this case because in that case there was a written memorandum of agreement signed by getty on behalf of the shareholders of getting oil and signed by pennzoil and approved by both boards of directors and the issue in that case was not whether an oral contract was in forcible it was whether the written memorandum of understanding approved by both boards of directors was sufficient even though it contemplated later documents to be prepared that were more complex that case and this case are on different playing fields and are not even close to being the same what one particular writing well there's there's several each contract that was drafted after the october fourth meeting had an integration and merger clause in it and specifically the ones that that are clearly in the record are the gala met which was the management company that dr rosenbluth was going to be part of which is that the record  five eighty one and gallon hat was going to run a limited partnership which is that the record at six fifty five both of those agreements contained integration clauses and the second circuit in two cases relying on new york law which is at least arguably a political here decided that when the parties prepare written agreements with merger or integration clauses in them that is an expression of their view that the deal was only going to be made in writing because it excluded all oral agreements it excluded all prior negotiations to see a morel a case from the second circuit calls it persuasive evidence and the r g group case also second circuit case and calls it conclusive evidence so the fact that those two documents were drafted post october fourth with merger integration clauses is clear evidence there was also substantial evidence that no one believed an agreement was reached on october fourth including the plaintiff the pla was asked in his deposition and any time from october fourth to the day you filed this complaint in september two thousand and two did you ever take the position in writing credentials that they had entered a binding agreement october fourth his answer was no and there were at least three undisputed documents either from dr rosen or from his lawyers wilson signed seanie that were totally inconsistent with an agreement being reached and let me tell you what those three are very briefly october eighteenth there is an e mail between rosenbluth and his partner volpi in which they are discussing eight deal points about how the general partnership would be run that document which is at the record  their third partner obviously if you're still talking about material deal points and you're still running them by your your own partner and the other side you don't have a deal document to october twenty third nineteen days after the supposed agreement of october for wilson signed seanie hired by plaintiff circulates a twenty three page term sheet for the same deal that he claims was made on october fourth what's significant about that and that by the way is that the record for fifteen what's significant about that is there's not a word in the term sheet saying that it's confirming a prior agreement instead it's a term sheet proposing material terms and the material terms are significantly more detail significantly more comprehensive than the october fourth agreement that dr rosenbluth suggested in his in his declaration then we have the third document that i want to refer to which is very significant on october twenty sixth or now at twenty two days after the meeting of october fourth a settlement agreement with david settlement be reached with two voc because they could not go forward with this new deal without his interests having been resolved but the deal was never done were duvall wasn't at the meeting of october fourth duvall never agreed to the terms and the first time they're even circulating a draft settlement agreement is october twenty sixth so that is a  didn't produce one because we didn't have one so it never it's never failed but there's one other part of that that's really important they're negotiating on october fourth with the understanding that a material the duvall settlement and you have to do vile settlement hasn't even been drafted yet and the material terms of that deal haven't even been made so what that does is that goes back in underscores the absence of material agreement on october fourth irrespective of the question of whether duvall ever agreed to it or not let me now turn to the last point which is paul brown  judge hawkins i believe raised the issue of mr brown is something very significant about this the deal that dr rosenbluth suggests was made on october fourth by his own testimony included paul brown was never there paul brown never agreed to the terms they hoped he would they were circulating documents for mr brown's review as late as october eighteenth and he still hadn't agreed and yet he was a person whose background whose track record was in all the documents including the graph private placement now mile and if you look at each of the documents that was drafted to implement this agreement if in dr rosen bill's terms each of one had a signature line for paul brown yet paul brown declined to participate now they say well it's a disputed issue a fact is whether we could go forward with without mr brown and if the question was could you come up with a different contract that contemplated of fines running without mr brown then that might be a disputed material disputed issue but the contract that's trying to be enforced here is a contract with mr brown as a manager running a twenty four million dollar fine and yet he wasn't even an active meeting and dr rosenbluth produced no  either by his testimony or by documentation showing that brown had ever agreed to the terms of that agreement and that so mr brown's lack of participation and then his resignation really has two legal conclusions one is a lack of agreement by the principal parties need to agree on the deal which makes the october fourth deal on enforceable but when he resign from the company and leaves which there's no evidence linking back to anything else in the record other than council speculation when he leaves then the deal can't be done and has to be renegotiated possibly could have been renegotiated but regardless of that neither party is balanced by the earlier agreement which presupposed mr brown's participation i do want to mention one other point that's in our brief money on this deal he was a fully employed employee sees me for being redundant of prudential securities when he was negotiating this transaction the only damages that he asserts in this case and that we i got that from him in his deposition and in his declaration is the profits that would have been made on a hypothetical amount of money and raised by the limited partnership not a penny of it was ever raised invested in companies that he could not identify with exit strategies that were purely speculative and no one could tell whether they would have made money or not there is not a more pure example of an enforceable speculative damages than the damages that dr rosenbluth asserted in this case thank you ok thank you for your argument coun negotiated and agreed to before the at tobar fourth meeting and he also testified that paul browne agreed in advance of the october fourth meeting that he would abide by whatever terms the parties negotiated with respect t rest of the fund at the october fourth meeting the parties agreed the outstanding terms on the rest rest of the pond and did not change paul grounds arrangement whatsoever therefore there was no requirement that they go back and prudential from breaching are backing out of the deal and he also held that the record did not support an inference that prudential backed off from the deal before paul brown resigned and that is simply not accurate the record shows that as early as october twenty seven prudential senior densher executive instructor just marketing people to hold off on scheduling the kickoff event to markets the fund to investors  when volpi and rosenbluth learned of this on nov ninth four days before paul brown resigned they shot off an angry e mail what's going on here and the prudential executives confirmed that the deal was on hold that was once again before paul brown resigned this will never took the fund off hold just ground to a halt they didn't proceed to the floor to market to investors they didn't just need to move forward with the implementing contract never took a step forward after that in fact what we actually did start to do it began dismantling the prevention of open a technology group which was to provide a proprietary deal flow to the client so the question should not be able to take advantage testimony it is clear that hope he was talking about the closing of a deal not an agreement to get it launched mr throat also said that the court could rely on the complexity of the deal alone to determine that this should have been in writing but that's just one of many factors and here the parties were not starting from scratch they were basing this fund on the bedrock fund they were basing the legal implementing documents on the bedrock documents and there was strong evidence in the culinary memorandum of understanding but it expired by its own terms when the when the board did not approve it the next day get a board reconvened the meeting and and contract and i would submit that the factors there the poor tribune factors were far weaker than in this case the parties issued a joint press release which said that the parties reached an agreement in principle the relate to the implementing documents not to the oral agreement at hand and there's nothing to suggest that those were unless all terms with respect to the october eighteenth e mail it starts out it's talking about a limited have additional details but that doesn't mean that those details were open terms or even that they were material remember that the parties were not starting from scratch they had agreed to base this deal on the bedrock document and in conclusion we would ask the court to view the evidence in its entirety in the light most favorable to not to dr rosenbluth and we think that if you do that you will say that the issue thank you thank both sides where there are humans very helpful very interesting cases it's a bit of her decision and will now proceed to the next case on the docket this morning which is the securities and exchange commission against