contract in november two thousand and thirteen to provide c and he with mobile phone memory parts like removed for summary judgment alleging that it's not a party to the con it was not party to the contract but wasn't involved in the transaction establishments or at least raise significant questions of fact as to the establishment of asset recovery as blackberries agent and so that that transaction occurred in june two thousand and  from june two thousand and eleven then we look at the course of dealing between the parties and what you have is fifteen transactions that all virtually identical to her and so the question then becomes was seen any put it reasonably r on that initial establishment of asset recovery authority in november of two thousand and thirteen and then finally what i want to do if there is time is talk about the cases and explain how the factors for summary judgment is granted do not in any way seems to me that argument takes you very consistently up through september two thousand and twelve into october two thousand and twelve but then in two thousand and twelve or two thousand and twelve you get that e mail you like it's that e mail in which it other it's august two thousand and thirteen they actually require that you change the name of the supplier to account to a a r why don't those two facts establish a new course of dealing seems pretty unambiguous well it actually has to be looked at in context so if you look at the different interpretations of the email exchange can be derived based on how you how much you credit scenes testimony on that point that's in the record so what seanie testified was in that entire time period it was actually august and october of two thousand and twelve that i was having difficulty viewing with asset recovery and it went to black berry and said hey black berry is there any anything you can do to help us out and what they said was no you need to deal with asset republic they said more than that they said our purchases between our purchase between jr and blackberry those are your purchases  that what was stated in that e mail was not correct well but subsequent purchase orders that happened after that phone conversation continued of blackberry this is far but then they before this transaction say correct that is well yes they said correct that is well in the explanation we were given was because asset recovery was taking a larger role at black berry it wasn't from blackberry that i mean that's that's correct that was from the agent but if this court looks at the white form very decision where the court  directed verdict the court in that case the there was an independent party who signed the contract with the plaintiff the plaintiff sought to sue the manufacturer of the milking products and the argument by the manufacturer was i'm not on this contract anymore and the the district court granted a directed verdict and said yeah there's no privity this court reversed finding that  a jury could look at the reality of the situation in the form of the situation so the reality was if if you read the emails exchanged in the way blackberry wants them to be read as opposed to crediting all  stances and sienese own explanation of how those emails and what they were intended to mean which was basically respect the chain of command here you have to deal with asset recovery how is it in  d is between account recovery asset recovery and rent well it can in the purchases between it conflicts with the actual purchase orders that were in that time it conflicts with the expectation that was established in june of two thousand and eleven it was confirmed with that that the question really is what did what would see if he reasonably believed when it received these communication e mails thinking that appellate court was going to review it later and say well you they use the word that deals with or that phrase and that must concretely mean as a matter of law because there isn't a case that they cite where that kind of language or that kind of discussion a single communication taken out of context of the entire course of dealing in the relationship at that point on particularly when they continue to operate in the same way as they always had even going forward and the purchase orders continue to list blackberry as the supplier there isn't a case that says that as a matter of law a jury could not find that seniors explanation of the events is  actually puts the burden on the the the principal to come forward and actually do something unequivocal we're talking about a commercial transaction here if after twenty invoices with no mention of any a quintessential jury question and these questions about the entirety of the course of dealings between the parties and all the circumstances need to be taken to account in and here what i think is particularly on sixty seven  contended that this case is somewhere one where a consumer purchases are from a dealer we disagree that's exactly the analogy that black berry makes it's exactly the analogy that the district court made at the oral argument in the circumstances even if the jury believed that brown was ordinarily an independent entity it could find that in this case the defendant itself was in fact handling the deal we therefore conclude that the earth in directing the verdict for the defendant so in this is a particular case where the there was a ordinary commercial transaction following exactly the way that you're saying your honor and we have documents that show a particular party is that there is a transaction between one party in another party and this court is saying no you can look at the reality of the transaction you can look at the substance behind the form and a jury should decide whether or not those e mails the subsequent changes in the purchase orders were significantly material enough to alter sienese weasel expectation up through november of two thousand and thirteen and i think it's also critically important that blackberry's position in this case has been that it has absolutely parties that is directly contradictory with blackberrys position that was standing wholly independent and it's exactly these kinds of conflicts in the evidence that warrant a jury determination and a trial two or three communications at all since the first transaction and as we point out they were all consistent same direction black vs we don't get involved you deal with them of course the reason they didn't was black guess that's because that's the recovery was acting on its own account asset recovery time see any that was financial risk in transactions and it had already paid for goods again showing that it was acting on its own a that's absolutely absolutely opposite of what happened here and that's why there's an issue of facts here and there is no issue with facts here when you get to the when you get to that november two thousand and thirteen transaction at issue if that's all you look at there would be no face and what is no basis anyway but there's no connection with with blackberry at all and the fact that blackberry had these parts available that it put out to market to asset recovery and others a commercial cases summary judgment should be granted here district court's decision reversed here that would mean that any third party like to see any here was a dispute with a broker with a middle man cave distributor like asset recovery could claim that the middleman is an agent of the original supplier manufacturer like black berry and drag that supplier all the way to trial i mean any time supplier placed some arse the question of whether or not c s reasonable reliance on whether there was a break in the in the chain of reasonable reliance is a fundamental question of fact that's what the cases do not here black berry cite to a single case that's dispositive on facts and more this case because there isn't any the email that i was when i was up in discussing with what the court actually has a  through an meaning as a recovery as you constantly says i respect that but we need to resolve this issue i'm not looking to circumvent stephen for commercial so it so what the the way the emails can be read the e mails that a worry about if they don't blur the lines if they don't hold somebody out like blackberry did with asset recovery don't go through a number of transactions which it questionable whether or not see any could continue to rely on asset recovery then they don't have to worry about being dragged into court and having a jury trial but here i think we can all agree that they established asset recovery as having apparent authority and then the question then becomes is the jury going to credit the explanations of blackberry or not are they going to read an e mail strictly in isolation from the other evidence in the record or not that's up to the jury to decide and that's for another day the question is whether we have structure the changing of the pos the p o s were changed because asset recovery gave an explanation to see any at no point as black berry come forward and say hey unequivocally as there are cases where this happens you know in particular is a large company with legal department writing a letter asset recovery is not our agent you know because i think everybody could have recognized after the first initial transaction that's exactly when the jury could put it that's exactly the scenario in context that barry was establishing and for these reasons and those stayed in our brief respectfully request of the court reverse summary judgment thank you