relief and there are two points i want to make an are really focused on in the briefs and other than that i think the briefs pretty well speak to what our argument is but basically in march of zero three our client who has a confidentiality and non competing agreement basically saying that the defendant will not use the information other then through their collaboration with my client then a couple months later enter into a written contract where my client is given the non particular deal because it says relating to the subject matter of that particular contract any one compete agreement is a little bit different than a right to represent agreement with the language used non exclusive yes your honor not just  compete non excludable there's a none compete agreement and a separate non exclusive right to represent agreement so yes you are you are correct in that but what we are arguing is so they enter into the second agreement then my client well i think it was i think there was a contract that was energy but there's something inherently wrong with a company that goes to someone and says ok do all of this work for us analyze twenty one thousand of our phone bills we're going to give you the right to represent us there you are what i think you're on notice stuff is that we're going to talk to you total coverage but we're also going to talk to cell phone service over here we're going to talk to cingular we're going to talk to l a cellular and we're going to look is the best deal so you you are negotiating this deal we're go and that's why we have the procuring cause and the listing agreement of course and most real estate brokers are non exclusive that if there's a picture in cost then they're entitled to their compensation you can't do that to a real estate broker you can't hire a real estate broker have them take you all over town and look at twenty three propert and then thumb your nose at and get your cousin who's a real estate broker to go represent you on the deal and make the money there's an inherent unfairness about that and that's exactly what's happened here and it's exactly what they're doing in theirs and pike a man of good faith in feeling that they won't do that it's wrong for well you know obviously when a problem exists and you're looking back in hindsight it's easy to attack and say they should have advanced the papers to me i was not party to this transaction i'm looking at the transaction from the first version you make with a written agreement well then at the very least there's fraud involved if these people are telling them to you that they're going to in good faith allow them to represent them even those non exclusive there's still an implied covenant there that all along they're intending to if they had been if they had brought a deal that was fully acceptable to us and one that we that we approved and that they in fact had negotiated the terms of those deals where they had done all the work and they had were acceptable to you and you then went through the other two team mobile and said these raids are fine now we want to sign them directly with you could you do that that's a different case don't allege that those are the facts and they have never i know they're not for fact i'm trying to understand what you think the contract means it means that no matter what they do i believe this contract to me is just as it says  paragraph one the right to negotiate as non exclusive right to negotiate blah blah blah t mobile products in all cases subject to the approval meeting they would have to bring a deal to us and we would have to say yes we approve the deal you have to thank you for negotiating thank you for putting it together and we here by we here by approve it and we approve it in writing one could say they like the entitled to require on a quasi contract theory in other words and i want to be clear about why i'm agreeing with you judge which is that you have put to me a hypothetical which is they have done all the work would say yes i suppose the only time i would agree with counsel that there is something wrong here however they are not the facts that were a wedge and they were given three opportunities to do so to do so and for the appellant to say we could have that and we could be clear that's the first time they've ever said that here today in oral argument they had they had three opportunities to state that they had every opportunity to inform the district court that there were missing facts they had every opportunity when they drafted their their their opening brief and when you raise your question here today your honor i looked again at the statement of issues as this structure framed by the appellate nowhere in there do they say of the imply covenant in good faith and fair dealing they didn't have never appealed from the fact that the district court dismissed the implied covenant that's another non non issue they have no such claim they have never appealed have never argued that the court should not have dismissed the and the implied covenant claim a claim which rested on a theory which contradicted the allegations in the complaint the implied covenant claim was you can't go around us and negotiate on your own and it's paragraph or change of the third attempt here which is the second amended complaint it's paragraph fourteen which says my clients send it negotiated directly that violates our contract in the problem there is that they incorporate the written contract into their own allegations and the written contract says it's a non exclusive right because i actually want to first point to thin answer is that this particular phrase makes no sense in this contract because you're not a vendor at all oh i can question is what is non exclusive mean did you mean that you were going to have other people go out agency which is which is certainly older than anybody in this room that we use a non exclusive that means other people can do the very same thing in that if you are an agent and you want to protect yourself and you want to take the principal power to negotiate authorize you but i'm not giving you the exclusive as the agent you know wait a second that needs my principal can go directly to to themselves or the principal can go higher and other agent the law but the verbs hear about negotiating and it is not it is not exclusive the the whole case theory by the plaintiff here contradicts the very language of the contract but i don't think having certain point you would no longer have the right one and the only question seems to be that they have not claimed that they've reached that point at any point until this morning  course i doubt i disagree with you where they've done all the work and then drop the deal and we authorize the deal of course the law ought to reward them at that at that point but that's not what happened according to their own allegations and they've had every opportunity to pound more facts in there to give something else and to even articulate what that would be through an offer of proof which which they have never offered to the trial court nor have they offered to to this to this to this court you know what's what's interesting is they agree the deal was a non exclusive deal th in fact allege that second you know they moved to reform the contract i think it's their turn to cause that they're trying to claim for relief and then move to reform it to say that it was that was really one sense and that that was authorized to sign the to sign the contract they never moved to reform to say that the parties really intended that this be exclusive so what we are left with is just just the basic landscape of this case is a non exclusive right to negotiate on our behalf and they have already alleged that we went and negotiated directly and that's not a pick you're a cause allegation and i do it because i think you're of causes and it's not enough that the broker contributes indirectly or incidentally to the sale by imparting information which tends to arouse interest he must set in motion a chain of events which without breaking their continuity caused the buyer and seller to come to terms as the proximate result of his peculiar activities nelsen did not affect the sell the property he did not put the buyer and seller together or cause a meeting of the minds on the terms of their of those aren't the allegations here and we already know that the contract says it's something we have to approve what they say here is that if you give them every benefit the most liberal construction of what they're trying to communicate they have never claimed that they put it all all together they have never claimed that we just jumped at the end and just closed the deal our self but we always reserve the right to ourselves to go out understand that your words must have legal significance and if you're going to claim that this really was exclusive that we cannot negotiate on our route then you have to use different words and you ca terms in a case not just words like vender but with all due respect but important terms that you need you cannot come up with a case there where you try to say that this is the complete opposite that if you come up with that there in must be a radical exception to the law and there better be detail pleading and and a radically different case that has then been presented here by this enormously simple case with an enormously simple contract with a very clear warning where they all ledged three times that we negotiated that we did in other words the very thing that we are allowed to  complaint although not worded as our pleas it could have been we allege although plaintiffs fully performed all of its obligations under the agreement and have the right to negotiate on behalf of senate defendants and contacted t mobile directly energy that especially when you look in our oppositions to their motions to dismiss this isn't the first briefer we brought in procuring cause that was something that was brought up in the earlier briefs they have general notice that we are contending that we were the question is is that a clear pleading what your position is or do we have to fill in the blanks well frankly i think the court was wrong and both times i think our first pleading stated a claim upon which we leave can be  allies in their phone records to determine how we could best get them the best deal in other words by looking at twenty nine thousand phone lines we're looking at where they're calling when they're calling and we're using our trade secrets in formulating the best plans and strategies for them we then give them those ok and then they go to company b and say what can you do for us but don't give company b any of that information and company b came back with a better deal they were free to go with company b we would we wouldn't have any right to complain so just by the fact of us doing the analysis doesn't mean we