between the parties and it found that not based upon any writing because no readings had actually been agreed upon it did it based upon a phone conversation that was ninety seconds long we did it based upon a phone conversation that was done in abbreviated fashion while traveling it did it based upon a phone conversation where the parties had had incremental discussions about terms at that phone call three of the four terms were set in concept no one said those were the only terms the fourth term was yet to be agreed upon and importantly and those council end of the call by saying there are some quote significant issues to be result before any settlement can be completed and now with respect to that you know we could take all those and it's pieces and parts but with respect to the fact that it was a ninety second phone call given the fact that it comes at the end of long discussions isn't it possible that you could have a thirty second phone call if there was say one critical term last and and the last thing that word of god we got rid the time of that phone call really make a difference in context the time of the phone call m case law makes pretty clear and makes very clear that the existence and legal consequences that's a plenary review issue the underlying factual findings is clearer now there is no  as to what was said on this phone call the facts are read upon in terms of the words used to call with the small exception of the discussion of a subsequent letter to be sent to the just let me ask about the ok then with respect to delaware law the delaware law does not require a writing does it it does not require writing so long as there is under the delaware case law on objective certainly the only thing that's point to bill because this is one of these very weird cases there is no writing that anyone can point to that was not exchanged e mail that was not a term sheet the what we can point to is the january twenty fourth draft of the my of the things that well maybe trigger and you know there isn't it is there is an immense chilling effect from the district court's decision on the ability to have these sorts of it's really tough to be more particular in your comments than that this is not going to this is not an agreement i don't agree but they were agreed on those three numbers my point is if  your point is that if we were to affirm what would happen here there is a parade of horribles in the marketplace about folks who will be free to enter into discussions leading possibly to settlement which is always in the public  negotiating table any more to talk about and so if we are if we are going to have a decision that sense saying that's great and adding but there are significant issues to be discussed before a settlement can be completed if that's not the same as as your hypothetical saying but we haven't reached an agreement yet i think quite frankly your honor i do think you have a huge chilling effect on conversations company to cut the other way and the judge felt there are a couple of answers to that your honor we start we start with the simple statement that an agreement of principle is not enough to enforce a settlement agreement under nelson but in addition that is disputed fact asked what was said on that conversation what the hell it was that well there was certainly discussion of sending a letter and the judge said the letter would have said settlement in principle the parties agreed that there was a discussion of sending a letter the parties agree it would be sent and draft for review by endos council were we're aiming at a target that is really a double if not triple hypothetical what was the letter have said how would it have said it and would it have been agreed to we never got to that point and i understand that the judge bungalow made certain findings on what the letter would have said based upon the conversation although that's really the that's really the only thing in that phone call that's disputed is what would the letter have set but the finding that the letter would have said an agreement in principle is reached is directly contradictory to the agreement of both parties that mr donna tello said are significant issues to be resolved before any settlement could be completed contrary she found that piece of evidence to be more compelling than the piece of evidence that you've been emphasising about the significant issues when it surely are there are many contracts as you know in which there are issues that are not resolved between the parties that were contemplated initially to be within the reach of what would be the ultimate resolution the parties hope they don't get resolved nonetheless the parties have an agreement on those quite common there are certainly some agreements that are reached where some of the details and some of the non material terms are still open and that's the question in this case was it a material term are non material are and we had in this case your honor a number of material terms that were not resolved well who decides if they're material well the easiest case is to go to what the parties actually said is agreed upon by course but is it a fact finding or is that legal it's and as the quandary cases your honor it becomes money when you're dealing with with just oral conversations and there's no peep or trail because it is a legal conclusion this planet is for this court to decide as a matter of law and we know that judge says that on the january tenth call there was discussion of the three turns out of the four we know that that's not true because we know that both sides testified what happened was is that with all due respect such clevenger the conversation was was agreed to in principle and will come back to judge agrees with that judge brown says it was never come back to but judge bomb also admits or recognizes that it was in the january twenty fourth draft it was in the january twenty fourth draft it certainly wasn't dropped it was the fourth term that was reserved for later conversation we know was reserved for later conversation because mr donna telos brought it up on that phone call besides the declining sales trigger what what other term you said they were for number of terms that were still significant terms what would you say other times despite the declining sales trick to qualify well there was a real perhaps she had he couldn't he couldn't be precise on that but she may have but the fact of the matter is that what was not said on that phone call when mr donna tells her but what about the significant issue of the declining sales trigger dr to cleo's response was not oh you know what that's not we said it was a threshold term but you know that's now a detail where that's not something that we can talk about or anything that was  because judge brown gave a huge credit to what was in the subjective minds of milan and the case was we set out it's very clear that the subjective mindset of milan doesn't matter and to look at it in the reverse to consider the to morning may please the court when amos michael summer i represent miley in this matter the record blow is clear it demonstrates that district court committed no error it applied the law correctly and factual findings were amply supported by the evidence its credibility determination should not be disturbed if if it's true that these other terms or not at central terms of the contract then why was the declining sales here included in the draft of january twenty fourth so i think the best way to answer that is it was discussed early on the more correctly founded it basically dropped off the radar screen both sides agree your honor that the not essential correct it has to be and here's why what's the definition of a non essential term one neither party is prepared to dig their heels in and care about the hearing right below demonstrate that's exactly how both sides help about the decline sales trigger or mark it up and look at of course and that's why we have a district court judge evaluating the record through making credibility terminations of the witnesses and what's most significant here your honor system the the record of what was agreed to cannot be answer yes that's right and then that settlement offer had three terms and there was no dispute with the terms were it had three terms and only three terms none of these other so called disputed issues were out there had three terms and that settlement offer stayed open until january twenty eighth at twenty seven sixty one question to mr donna tells endos witness would you also agree that as of january twenty eighth endo had not withdrawn the settlement offer it had communicated some island would you agree with that he answered yes yes i would agree with that and then what happened on january twenty eighth just one more question mansur question let me ask you this or this is again and ozone witness let me ask you this are on the morning of january twentieth when you woke up got ready to go to work there was an outstanding settlement offer from and go to milan correct answer that's right question and later that morning andrea chilean called you and told you she accepted on behalf that agreement said they could wait ten years to pay right well at the material as to when the payment would be made i submit no your honor i think the amount is which material i think the exact payment date is  ministerial and it's got to be a reasonable date and i agree with you on a vision an agreement on the date of payment i agree with that i can argue otherwise but that's a ministerial task what days you pain us i don't think you could wait ten years i don't think that's reasonable but there was an and i i can't argue with your honor that there was a date there there was not a specific date but i i think as any term it's a reasonable interpretation of what the agreement was is there a meeting of the minds of the parties there's going to be an opinion a payment i don't think would be reasonable to say well that's going out ten years i don't think that would be reasonable so you know i think for that to defeat an agreement the parties where a phone call and i do dispute this timing on you know the ninety seconds is significant i mean that this is the end of a long dialogue in the phone call is we except your offer we accept and the answer is that's great but it doesn't then there  of the three material terms exactly what they are going to chillier testified to that there was no contrary testimony about that that's played right out there and then we get to this issue they're trying to make with this court of that there were significant draft she gave a response of marking up in a district court fretted that testimony found god on the telephone testimony questionable and concluded that that only had to do with the settlement offer and what's most significant then is what happens that's what she testified to this is not a teller doesn't remember what happened in the conversation so you know why is that conversation even happening why are they even talking about letting the judge know that there's an agreement on all material t brings me to have a point that the policy argument that your friend on the other side is making is it's not really frivolous i mean i was actually kind of shocked when i saw that because having been on the district bench for sixteen years i can tell you that in ohio it would not be in a forcible  to have he said she said and back and forth and fight over whether or not there was a settlement and so either add one in writing or you inform the court so if it seems a little odd that that that would constitute a well you know what's really odd here the unique kind of what happened and that's why i don't think there's a potential chilling effect because what happened here was unique there was an agreement by the parties that they have a settlement they agreed to let the district judge know and before that letter to get submitted literally twenty minutes later the district judge releases its merits decision and what's very noteworthy is when mylan representatives call back and up and say look we just want to make sure you're standing by your agreement the answer is not oh no there are these significant issues that's not the answer they get all the answer they get all circumstances of change is it's not in writing that's a page twenty seven seventy four question this is the and not oh they're the significant issues it's that it's not in writing so i'm not i submit that you should not be worried about a chilling effect or some policy angle here because the facts of this matter are very very unique where this m decision comes down literally almost catching it in you know in space as this letter is going to be prepared to move to the district court but at the end of the day you have an agreement under skewed record where there were three terms to a settlement offer three terms no dispute what they are an acceptance of that offer and on that record particularly the credibility terminations the district court and the law delaware was well within its right there are disputed issues of fact the district court should conduct a hearing and then from that hearing record resolve those disputed issues of fact and apply them against the body of law that controls so here there were actually were l contract can be enforced both sides agree that both sides went forward with a hearing where any factual disputes can be resolved both sides agree to that the district judge performs function properly made credibility determinations were necessary and then that factual record that she found against the body of law that the parties agreed with the controlling law the only disputed issue a law below was where there was a clear and convincing standard or whether it's a preponderance standard we argued it was prepo clear and convincing the district court found it was preponderance but also found that even if she applied the clearing convention standard we would have satisfied or bird so i think we're right on the burn but it ended up not being an issue so judge o'malley that's how it answered your question it's really not different i don't think you need to draw lines not different than any other hearing a district judge and that you did for many many years has to determine disputed issues of fact and then apply it against the gloss of the law that controls the circumstances before the court that's that's what the district judges do all the time and here this was only unique in that that merits decision came out in that short time frame nothing else  not you're right judge i i guess i'm not saying it could never happen again i'm saying this was a somewhat unique fact pattern where i submit that you know had the marriage decision not come out i never would  writing not a not a disagreement that we had an agreement worldly just it was in writing and i don't think they get under the law i don't think they get that mulligan they don't get the do over and they don't get to read it thank you very much restore your full four minutes and we didn't even know your friend on the other side the news of the time i will try not to use old all four but i'm afraid i can't promise that because there's a couple of records citations i'd like to call the court's attention  and one was the question your honor was whether or not mr donna tello had used the word significant and whether it was to leo had agreed that the word was significant and i would refer the court to the record eight to six seven six  towards the bottom question did mr donna tello tell you there were significant issues to be resolved before settlement could be completed answer he said that but not in respect of that freight he said it when i asked him if he had reviewed the draft settlement agreement and then it continues on so docketed will certainly be read in the record is the word significant does not only appear in the declarations part of of the record that the trial court was that was the exchange which which milan as characterized as the final settlement and it makes that characterization in large part from a quote from mr dunn the telo saying you know that was that was the final offer and they do that with citation to eight two seven six zero what they don't address however is the question of what is final this final is an ambiguous word mr  like that in his testimony at eight two seven six eight question and the offer that was out there was in those final settlement offer correct answer it was the last one that had been given to m in that sense it was final because there were no others a final doesn't mean take it or leave it final doesn't mean that's the drop dead offer although that's certainly how milan and even the district court seem to take that phrase  what final man in that context was the last one that was sent but it was said again in the context of knowing that there were at least four terms to the southern agreement one of which the details was reserved until later  but isn't that the way you described the the settlement offer to the court in the january twenty third phone call you said i i thought that was probably the final arc streamline of to it and at that point you're not talking about the last line you were saying the final all right well i was hoping that it was i was hoping that it was going to be the four terms that were agreed upon by the parties gesture and close to the last one my hope was and my understanding was that milan had delayed two and a half weeks so they could get on the phone and talk about things in detail and resolve the nuts and bolts of the four terms that had been discussed which is certainly not what happened and then of course the barracks decision came down and that changed the circumstances to quote mr gonna tell us what you haven't been pointed out to is what mr dunn a fellow described the changed circumstances meaning milan has painted it circumstances and finally because my time is almost out i want to address the three and only three points this is and they said there were four points not three and only three we've discussed the phone call this is not a unique case i have been in this courtroom where we've asked the court to defer argument to last because the parties were settling in the hallway this is a case where we knew where the end to thirty month stay was coming up we knew what the deadline was all of the parties knew all the parties were working towards a set deadline thirty months had passed and we voluntarily agreed to a few more days and the judge had canceled a phone call on monday this is in the record cancel a phone call on monday and said i'm not having any more phone calls with council eep indians coming out to do by the end of this week and lo and behold on tuesday the decision came out everybody knew this is not a unique circumstance these cases happen all the time to affirm the court below will of course set a chilling effect as to my other arguments we rest on the