those claims really drives a lot of the analysis in the case our claims against will not it was based on the two thousand and eight term sheet that was finalized by the parties under which we paid one hundred thousand dollars for an exclusive right to negotiate a definitive agreement later that would honor all the major terms in that term sheet that contract like all contracts in the district of columbia contained a duty of good faith and fair dealing and so there were two distinct obligations created by that part by insisting on a new terms that were not in the term cian by delaying formal approvals after all the material terms in fact all the terms had been agreed with staff by refusing to finalize after  take yes for an answer when all the terms were settled and by in general indeed in the spirit of the of the agreement to agree that was that was embodied in the term sheet and what about the exclusivity argument i i don't see a direct allegation that one model negotiated with others by are you arguing that one can infer that from the leak of information and to look occurred both outside and inside the period of exclusivity in addition paragraph two sixty two sixty two tell the story of chris and we're calling up not for oh saying that they're supposed to reach a deal then jimmy graham leaking position that isn't sufficient to make it to close his acts in official authority my guess is that counsel for wal mart and counsel for jim graham may have very different answers on that question and the answer to that question may determine whether we prevail or contr interference claims it gets a little confusing to say that jim graham was a model for purposes of the activity allegedly interfering with acting official capacity part of the time and acting in a personal capacity other part of the time is sort of metaphysical and sort of confusing and i'm not sure that it's fair to hold plaintiff to the standard of clearing that all up in the short and  something that the defendants have to sort out after they answer our complaint well mr grants we do have to look in to see whether you've crossed a threshold factually and we assume the facts that can be you know reasonably infer from your complaint issue whether wal mart it was acting through jim graham or whether jim greene was freelancing i'd love to hear their answer to that question and are you relying on i guess is apparent from pretty fired or modest staff member telling banneker that the staff facts that shows that we think what was actually going on here the whole time and paragraph one sixty is i think very much the same effect you address the but the immunity and sovereign immunity questions in this case cases is between the ministerial actions and discretionary actions and the defendants here persuaded judge collier to essentially analyze this case as anything not ministerial must be discretionary we think that this  cases actually start at the other end of the dichotomy we start looking at what is discretionary because we only protect actual discretion so we'll as the jim graham was taking actions that were a fair expressively for britain to him he was telling staff to stop negotiating with information or violating his rules of impartiality that just seems to be a way of saying he did his job very very badly and very wrongly which is usually the heartland of any immunity defense right that he was supposed to be making decisions and he did it impartially partially rather than impartially he was supposed to treat information in his hand confidentially and he didn't if that were a basis for tonight immunity how would we distinguish every other case where there's always an allegation that someone did their job very very badly and wrongly under this course previous decisions many of them involving the model that's trained on whether or not there is some expressed prescription of how the employer should behave so for example the souter case we have metro doing something entirely discretionary it turns out they did have guidelines and they did follow the liability in the case we have met or doing something without any guidelines and without any guidelines it was discretionary and again there's no liability we have a case that's in the middle there are guidelines and they were violated and because they were violated there is no immunity the question is not whether jim graham was actions can be characterized in everyday english as ministerial the question is whether we can actually say that he was invested with met by metro with discretion to leak confidential information when he saw fit was invested by measure with discretion to direct the stamp that was expressed in prohibited him it can't be a discretionary or if it's expressed a prohibited what exactly so he's prevented by article three you have to look in confidential information what prohibits him from working with the staff to get the best possible team on board and to add people that he thinks in his judgment would enhance the team i think that there would be nothing that would prohibit him from working to get the best possible people on board so what is it that that prevents him from interfering with banneker's development team and trying to get  would i'm not sure you're on i think there's a there's a long period of time that we're talking about and so we have to examine each act in relation to what the expectancy wasn't but are you are alleging that when the term sheet was in effect that  our gram interfered with said banneker development team and pressured panic her to buy land from his buddies so i guess i'm wondering what are the clear what will because jim graham was pressuring in order to get one of his campaign supporters onto the team that's different than just trying to work and get the best people ok that would be a clear prohibition a clear turns on the spin the complaint gives factual allegations about what some how someone did their job because they were just never be immunity and so your complaint spins it as he was doing this to advances on elect the interests of mexico and regardless there is nothing in this sad beyond a very broad level of generality how exactly i should go about my job as a board member or a chair for you are we don't know yet what your brain w have a different spin on the same facts i think we look at the category of activity and we say the category of activity here was in being involved in decisions about contracting by metro and in the unity question so and again this is one of those you know difficult areas where the same praise gets used in different ways in different parts of the law but it is well settled and we've covered this in our brief that th  i certainly think that the factual record could benefit from more development before the district court what we have relied on on appeal for is the that the direction of the personal direction of the stamp telling staff to cut  arrival bitter who's already lost the bidding process into the deal and then leaking the confidential information to the royal but when the right those are the main things that occurred during the negotiation period some of the other things that were mentioned in the complaint about do morning may please the court my name is doug bragman i represent the leave with model and i will focus on counts one two and seven and also we split the argument dan gold that the term sheet obligation exclusive negotiation where was that violated by what model oh i've scoured the amazing complain for five months that was extended it didn't have to be but it was extended by a while lot it three times to the point where they really had twenty months and their contractual right to extend that no no no the contractual right to have that documented not go on to require that all the terms that were in the term sheet had to be part of the deal that even the preamble to the term sheet says that it was a proposal being considered ultimate agreement but that's right to have and it is a right to have best efforts to reaching that reaching an agreement and i think the complaints philocles that allegations you may disagree and i have no idea who's got the right side of the story we don't decide that at this stage but it's hard to say because under something page complaint doesn't outline a lot of things that they say wasn't good faith i did i respectfully disagree i might disagree that there was an i think the moment i think they're right they are here until one of the factual disputes was extended generously your view was it extended as part of this effort to keep changing the rules of the game in the terms of the contract because of interference by mr graham that's a fact dispute that's not it we can't decide as a matter of law that it was generously granted extension as opposed to a problematic stringing out of process can we as a matter  flow if you're looking at the allegations the allegations are conclusory all the allegations is that this matter got before the board in march almost two years after i mean they're getting into a lot of faction factual granularity here about what happened when and who was doing was who said what to whom and how things changed and how they changed again so i think you're going to have to try to check on  w well i will respectfully i think there was all kinds of allegations of the collateral noise in this two year process of mr graham allegations of mr graham talking to the developer another developer allegations of the other developer making phone calls to the mothers there but there were no allegations of bad faith there was no allegations that a there was a negotiation outside of the and there were no allegations that the board did anything wrong they had all deciding to table this process after his two year effort to make a deal let me just direct you on the exclusivity and i think that's  one might infer that well model was in fact still talking with the other developer was giving out information to them i mean the fact that they're asking for advice about hey can we get best and final offers from these other developers it sounds like what they're saying is we've been chatting with them we in fact have been negotiating with them can we move forward with what looks good out of those negotiations and get it formally before the aboard why isn't that a fair inference from now and patience of them your question assumes that there were negotiations there were according to the allegations discussions with an outside developer and that outside developer was calling th s and promoting itself and bad mouth thing the other developer there's all kinds of allegations about that but those types of discussions are not negotiations with negotiations and you have to look at the amended complaint negotiations continue exclusively those collateral was continued but i guess characterizing communications whether they rose to the level of interference with that those communication repeated communications and all the allegations about how they were instigated and what their consequences were as a matter of law we can hold that those did not interfere with good faith negotiations interfere with a good faith negotiations but discussions with other people have to rise to a formal level of negotiation and i think our brief does address that dress is that these are not negotiations these are three months i read i read the papers but what i wonder is whether you can shed light on that that's the best and final offer for the development project not for a term sheet but for the actual project so they're saying we're working now under this term sheet to get a final development plan with banneker best and final offer for a while based on the allegations i think you'd have to speculate as to what that why were they even asking about that and assuming that anybody else was in a position to make a best and final offer a lot of water under the bridge by that time now one might infer that skid is really lot of water on the bridge good been almost two years of discussion and this deal was still having difficulty coming together and having real traction where the parties were coming to specifics and moving on to definitive agreements it was long in the to through that you in the plaintive have a different view of actually what the source of those difficulties were you mentioned difficulties but would you just agree that you have a different view  betters reliance on the supreme court's decision was all verses are going on this point is misplaced that case involved in motion for summary judgment where the defendant was also the movement have the burden of demonstrating there was no genuine issue of material fact this is a very unity from liability but it's also immunity from having to endure the process absolutely but i always thought the burden of proof remained on the defendant at the top of the sex stage to make a showing that taking the facts in light most favorable none the last and therefore the plaintiffs you know complaining characterizations that are that are in reasonably in the play disfavor govern but nonetheless on that universe of facts that he's entitled to immunity is that how you understand it that's correct and we believe whether there are certain things that even if they otherwise might be within his duties might be done through means that are impermissible for example you know political bias or corrupt and i think i'd like to begin just by talking about what is in the cases that have been cited by banneker those cases i mean kenny versus whitfield the bishop versus tyson those are cases where there were manifestly excessive means employed those cases were isolated instances of extreme physical coercion in me in mckinney for example there was an actual battery on the plaintiff by the defendant in bishop versus ties there was a false imprisonment of the attention of the plaintiff he was not allowed to contact a lawyer kind of sensational conduct i think starts pushing against that boundary but here again that conduct can be bracketed because that's something that happened before the term she would allegedly have been before the term sheet and it allegedly failed paragraph eight of the complaint says this pretty quick pro effort fail if this were a case you know being brought by mr williams or mr paine you might be having a different conversation but banneker was not injured in any way by the alleged quid pro quo and so therefore it's not really falling within the purview of the media analysis at all and i guess it's kind of a red herring is that right given that one of the reasons why might have cites for why the contract never came three was the lack of the capital development partner which is going the allegations of the complaint was a i think those things are conceded as not causal in the complaint and so there should be off the table but in terms of immunity i think i would just say you know what we're really looking at in terms of the conduct that we're asking for immunity for are things like you know think the concern isn't the reason why even the pre term she conduct seems relevant and there's at least the impression that the plaintiffs have is that there was a political favor to some motive behind a lot of what graham was doing in that one model was was sharing in that and allowing itself to be manipulated in that and the question the legal question for us is if that's the case if that's adequately alleged that one would have to determine based on the allegation the complaint is that something that is that is excessive means such that it pops this out of the immunity even though what he's doing is stuff that had it been important you know read about in the contract and i so i guess i'm asking you why why that isn't treated well as excessive need to shore and i think the answer is because the intent of the defendant is irrelevant under the circuit precedent with respect was politically motivated and you know allegedly done for a bad purpose however we look at what are the individual job responsibilities and have a manifestly exceeded the line of duty acted contrary to s claims well i mean yes i believe that's appropriate for just position at this stage for the reasons i express i you know again i think i believe all the conduct you know as a matter of law does not get you anywhere near me any more bishop and you know with here at least the allegations have a lot of you know unless you do this we're going to cut you out unless you do this and so i mean the intent line i don't know it seems as implicated by   that would be closer to getting or around the immunity agree with it so economic harm can act well this is not only economic harm but it's you know it's a direct misappropriation of property and it's  and like mckinney it's a discrete events and it's also you know the conduct here is subject to interpretation because graham has a he was a woman a board member p t ari finding development real estate committee member he had think the expectation at least is that we picked you we've agreed on these terms we think if we work together we'll be able to get to a contract will be able to get the green that's really what we think and that's why we're just doing it with you and that's why we charge you by the to that would satisfy the duty of good faith negotiation they did all negotiation and then they go but it's a government contract so we get to say just kidding at the end i think in this case though you know that that is not commitment to really try to have a contract at the end of the half a government not a commitment but i'm a little hesitant to wade into this morass but i think that what you're talking about is like a type two agreement which does contemplate by yes unless both parties decide to walk away at the back and we're going to have an agreement period that's gives us some expectancy and then through that we just did everything we scurried we jumped we heard we jumped and you know obviously in fact vellum and i could see that being defeated by all kinds of be a contractor with the government and they could say look you know build us a thousand deaths cherries and they're going to have you know d c love go on them and you go when you do it and it's like oh actually that was you know out well we cancel yeah but it was that you know sort of baked in the cake from the beginning i mean for the person making the chairs you know that that was you know a distinct possibility at the back end of the deal you know i know there's a body of contract law that addresses and that's probably a hypo because it doubt anybody would invest actual you know material in something with if they didn't have some no claws but or do you know training up for something because you're tall you know you're you're through everything except for this level of clearance pretty much always works you know is that what the story is created for i think this torch is created for situations that are under governed by contract and that's what your natural here is you have a term sheet that basically sets forth what the expectations should be and so this is different from you know another case where everybody's kind of competing work there's no written signed understanding about how this this whole thing is going to go forward so i think this is a unique situation thank you very much a plank you mr grannis if you took all this time campaign and taking away the capital development partners had her complaint i guess alleged that that has is part of the story here that's right that's right and the other thing that i wanted to make sure i touched on was that the that you can't even take a call from another contractor no blueprint of that was constantly calling every few months disparaging bankers be using confidential information on feeling there's a bit in order to have those discussions and