thank you your honor good morning and may please the core i'm quite sure that no one party's included likes to see three appeals in the same case and for that matter no lawyer likes to see his or her kids grow up and leave the house in the span of the same case but at the same time i would say that this time around the issues are a little different and we also have a trial court record to rely on having said that i think this trial was a little unusual in the sense that there really weren't any material disputed issues most of the evidence came from b r c s own executives including  president and owner mr chafey and really the rest comes from documents e mails exchanged between the parties so under those circumstances while it's clear that we're under a clear error standard of review i think the whole record is fair game for analysis without any kind of winnowing for credibility determinations and things like that so as the court knows this dispute came to a head in a brief period of time over just a couple of months in which there was a market shortage of this product called carbon black and what that shortage did was expose a fault line in how the parties interpreted the volume obligation in their contract continental due to the volume obligation is one million eight hundred thousand dollars pounds or one hundred and fifty thousand pounds per month but b r c believed that continental had to supply all of its requirements and this discrepancy in the beliefs more than anything drove the party's decision making in fact there was testimony from mr chafee that when he learned of continental was going to supply only one million eight hundred thousand dollars pounds that both were not covered and of course continental turned out to be right in its interpretation of the contract another key fact that i just want to mention and that sometimes lost in the shuffle of this case is that while the trial court ended up imposing three years of contract damages during the entire period of this conflict between the parties only one purchase order was actually at issue leading up to that point continental was way ahead of its annual obligation and the purchase order was issued in april it was for a rather whopping amount it was for three hundred and sixty thousand pounds even although the monthly requirement was only one hundred and fifty thousand another thing about that purchase order is that when b r c terminated the agreement it was actually partially fulfilled continental supplied a rd of that purchase order on may th but week before the contract was terminated and it also promised to fulfill another rd so two thirds total of that only purchase order in early june and if continental had actually fulfilled that entire purchase order as requested it would have supplied ninety percent of the annual requirement  c within the st five months of the year so again way ahead of schedule getting to the legal issues from my perspective the overarching legal issue and the key to in importantly that standard applies to claims that adequate assurance was not provided and it also applies to claims of repudiation more generally and if you posit think about each one of those words positive absolute unconditional they set a very high bar in essence the repudiation to be actionable has to be definitive there has to be clarity of intense mixed messages are not enough equivocations are not enough schizophrenia behavior is not enough and yet those are the types of characterizations that b r c is used throughout this case to describe what continental did another important point is that indiana courts have stressed that this standard of positive absolute unconditional repudiation is a strict standard because the remedy frankly is a harsh one or at least  the st of all do you agree that at least you're not challenging the district court's findings regarding b r c these reasonable grounds for insecurity that's isolation looks like a sure at least verbal assurances been given yes we will honor the contract but your defense seems to be built on the notion that at least on appeal that that message basically or races everything that came before and that any new grounds for insecurity like the june price list that came out just a few days later starts in essence starts the histories erased them situation starts anew it is that right i think it's partially right your honor here so i would frame and i would say that the things that happened before the provision of adequate assurance can also be double counted as failing to provide adequate assurance because really continental was under no obligation to provide adequate assurance until it was asked and until it was asked in writing for that matter ok so in that sense the things that happened before would be erased so  i also would hard hard to forget them and i am and where i'm where i'm going with this in essence is that the it is i understand you've said i think correctly that a lot of the facts here  all of them a lot of facts are not really disputed but the ultimate legal standard here is one of commercial reasonability under two thousand six hundred and nine at least the way i understand the law and  by commercial standards rather than legal standards and that sounds like a pretty case specific industry specific party specific kind of  decision where i would be inclined i think to treat that as just an overall question of reasonableness were a tribe or a fact we get a lot of deference what's wrong with that analysis well i think the main thing  honor is that we have to look at this sort of absolute unconditional standard as an overlay and by the way that's a standard that b r c has agreed to in its statement of the issues in this case that so in my mind yes there's an element of kommersant reasonable illness to this but you cannot simply ignore all the evidence contrary to the proposition that adequate assurance wasn't provided otherwise in other words you have to look at the context of the context is the only way to determine whether the alleged failure to provide adequate assurance wasn't fact  absolute and unconditional and as the court is aware we outlined several things that happened around this time that mr got jealous and his email and by the way that e mail was all the assurance they were looking for doesn't like on a mission and responds acknowledge yes repeat no that is the get this contradictory if you look at that in isolation sure it's assuring but if i expand the window to a week or so i don't know why a judge couldn't say well that's really not reasonable assurance well let me suggest this your hon what happened was mr mo ca repeatedly said we are going to provide you we intend to provide you we will do our best to provide you with one million eight hundred thousand pounds and that was actually understood by b r c to mean they are going to do it the problem for b r c was one million eight hundred thousand pounds wasn't enough they needed much more than that so that entire exchange of emails  by mr mo ca and b r c after may twenty actually supports our position because he is basically taking the position we are going to imply i'm sorry we are going to comply with the contract well that's i mean there's also evidence from that that he was saying in essence we'll do our best right which is under the circumstances might be understood as a little less comforting and then we get repeats exactly what was i but i'm happy to acknowledge that there are plenty of facts that favor you in your client's perspective on this case that's why this case wound up being tried but but what do you do with the  price increase and the interpretation of we'll do our best to say well but we don't know on the do our best situation your honor there is testimony in the record that b r c and its executives actually understood that what that meant was the continental was going to supply one million eight hundred thousand pounds there was no doubt about it the issue was it wasn't enough so this retrospective characterization of do our best is introducing some doubt is really not consistent with the record evidence of what  telling b r c to call another supplier right and that occurred before mr most i'm sorry mr got joel providing the adequate assurance ok just to be clear on the care of the issue or at least certainly under this standard positive absolute unconditional repudiation was enough to provide more context on the other side of the equation ok on the issue of the price sheet that's the worst fact for us frankly because that's about the only thing that happened after mr gotcha all issued the adequate assurance that the cuts against our could i could just ask a quick question about the issue of mitigation of damages are you arguing in this court the b r c was required to seek an injunction i haven't raised that since it was asked about it's true continental did seek a price increase of zero dollars two cents a pound that was outside the contract but it's also true that mr chafee b r c as president considered that price increase to be of a contract to say well that's like mike my contracting partner says we only try to steal a little bit well i don't want to a but i don't trust them anymore i see your point there your honor but the fact is these two parties negotiated an extra contractual tweak just a month or two earlier on on payment terms and they came up with a win win and that's actually what mr j p was thinking about doing with this request for the price increase was to get more volume out of the deal to somehow make it work in the testimony was that's not an unprecedented thing to do it happens in the land of commercial dealings and it really wasn't material the b r c his decision making it was all about the way it was presented in other words mr j b said if you want to come in if you would have as professionally if you would have been nice if you would have the right attitude i think you hit the nail on the head it's like saying and we tried to steal a little bit continental my opponent keeps focusing on this zero dollars two cents that it's peanuts well apparently it wasn't peanuts to continental it was pretty significant  fact that chuck chafee says well it was peanuts but in the record chuck chafey also says we were being extorted for zero dollars two cents a pound and when you look at two cents a pound maybe in a vacuum maybe that sounds like peanuts but over the life of the contract which was another three and a half years that's not peanuts at one million eight hundred thousand dollars pounds a year that's an additional thirty six thousand dollars a year at two million six hundred thousand dollars pounds which was the amount of carbon black that continental sold b r c the year before it's over fifty that the district court concluded that that was quite simply far more than peanuts and i believe that determination was reasonable i want to also focus on the standard for repudiation my opponent makes a big to do about it's the black letter law and it's positive that it's absolute it's unconditional well the law also says that assessing the adequacy of continental's assurances requires a consideration of the specific factual and commercial context of the industry the parties in the market at the time and again considering the adequacy of the assurance requires a consideration of the specific facts this court has also held back in break the contract when his performance comes due a statement quote sufficiently positive to be reasonably understood as meaning that the breach will occur so there it is there's a reasonable element in assessing whether or not positive absolute and unconditional and that makes sense because if you're going to look at the specific facts of the occurrence which is really what the district court here did and what the standard is then there's going to be a reasonable miss elements because what is reasonable in one context might not be undermines my opponent's contention that you can't consider what came before the demand for assurances it gives an example where say if someone a merchant delivers goods and the goods are defective and the merchant says i promise i promise that we're going to cure a promise that we're going to remedy those defects now and once an area a court can say the comment recognizes well that's adequate assurances but then it gives another example or it says but the same and what is reasonable and honest what is reasonable really requires a consideration of what change before the demands i mean comment for saying not only do we consider what occurred in the immediate lead up to the demand for  historical knowledge comes into view the comment forces if you have knowledge that this merchant is a known foreigner cutter that that can play into the analysis so what the comment is really saying is that you really consider everything not just what they've done in the immediately everything you know about this particular merchant when i view this case your honor i submit to i would submit to this court is that my opponent has failed to demonstrate that the court in correctly applied the law or incorrectly recited  facts and that's that's important because we're talking about clear error the only and the only argument on that point could you address the attack on mr nunn ways testimony to cut off b r c and he he communicated to be r c the coastal you testified to there but he also testified on cross but that wasn't quite correct wasn't and then we also have the issue of mr scott's deposition testimony what are we to make out of all the testimony on this point where obviously an explicit instruction communicated to to be or seated agree to this or witness makes different statements that is the essence of the district court is doing they're assessing the credibility of the witness i would also add to that point and this is a point that my opponents made i don't believe mr nunley told b r c at the time that mostly i hadn't specifically instructed him to move ahead with the price increase but in this is undisputed mr nunley did communicate b r c and i am to refrain from speaking to him and that if you initiate legal action we will withhold slash delay shipments that is undisputed and that was communicated to be our seat and that was one of the communications at b r c considered in assessing whether or not they had adequate assurances and it's one of the communications that the district court consider in assessing whether or not that continental gave b r c grounds for insecurity and whether or not it provided adequate assurance and that leads me to my next point the only the only error true error that my opponent alleges is that the district court should not have considered what came before the demands in assessing whether or not was adequate i would submit that had the court not considered what came before the demand that would have been clear error because had the court not considered what came before the demand it would have failed to consider the specific facts and it would have failed to consider the context against which to judge the adequacy of the assurance viewing a viewing assurances in a vacuum doesn't tell us anything i believe there's another seven circuit case i think it's c l magics where the this court said silence in the face of a demand can be positive absolute and unconditional well in a vacuum in the abstract i would submit that there is nothing more ambiguous than silence but certainly this court has recognized that at least in one scenario silence can be positive absolutely conditional so you have to consider what came before and if the court didn't do that it would have deviated from the legal would i'd also like to point out a real good jumping off point in evaluating this case is the prior appeal the prior appeal in two thousand and eighty because the primary issue before the court then was whether or not b r c could proceed on this alternative legal theory but towards the end of the appeal this court addressed continentals request to enter summary judgment and to chart term in as a matter of law whether or not c factual allegations plausibly allege a continental repudiated the agreement this court went on to say whether it's allegations add up to positive absolute i'm conditionals a question for properly reserved for the trier of fact and what i really like to point out is this quote by the court said the parties divergent characterizations of the facts in their briefs illustrate just how differently reasonable fact finders might interpret the record and so i would  court that it's already been determined this is the law of the case the court has determined that a reasonable fact finder could reach this outcome now the court was unwilling to do that based on the paper record but since then the district court applied the legal standard that this court resigned in the two thousand and eighteen opinion this court recognized that whether or not a party has reputed is a determination that must be based on specific facts of the occurrence so this court set out the legal standard it said that ultimately this outcome was reasonable the district court followed that analysis weighed the evidence listen to the testimony of all the witnesses and reach that outcome i would argue your honor that effectively precludes a finding if there are it's like a probable cause determination and in a state law criminal case absent a showing of fraud you can't go back and say all there was no probable cause except this is even stronger because the probable cause determination didn't come from the trial court it came from hell and that's how i wouldn't i also want to point out judge hamilton you pointed out the fact that the may th e mail from got sh a positive fact i would say that's one of the very few positive facts and my opponent grossly overstates its importance to this case because at one twenty eight pm on may th two thousand and eleven told mr cornwall i suggest you call and others at four o nine mr got celsus confront and my opponent is correct at that point mr cornwell testified we were relieved we thought we had a assurances for fifty one minutes because at four fifty three pm monday the th mr mosi a mr cornwall e mails most mostly a back because just because his attorney says one thing we all know our clients don't always listen to us and so he e mails mosi and he says please confirm you will ship three railcars next week i was at four fifty three pm at five pm on the dot mr move siestas will do our best regarding one real car and need ounce and then eventually we get the price sheet on may st for june which includes the two cent price increase which my opponent says we need to inquire further that it was unreasonable for us not to inquire further maybe it was a mistake why on earth would we believe it was a mistake when that when that june pricing brings us back to square sixteen dollars weeks earlier we started on april th that was continental telling us it's our way or the highway and so that was the final that their annual output was about six hundred million dollars pounds a year meaning all of the carbon black that continental would ship to its various customers b r c was also a tier one customer being we got priority because we were a strategic partner because we thought we had a requirements contract we thought we were supposed to buy all of our carbon black from from continental and i understand and i'm not making the argument that it's a requirements contract but mr nunley also it was his intent that we buy all of our our own black from continental so that made a six year one customer and so when you hear that we're one of their smallest customers were a tier one customer they budgeted two million seven hundred and thirty thousand pounds and now they're telling us we'll do our best to supply only one million eight hundred thousand and yes they said the shipment was coming in late may partially fulfilled shipment but i would argue that's a bad fact continental because again it's a partially filled ship it was all if it was a fully fulfilled shipment that would be a very good factor council but it was partially filled so i would submit your honour's when you view this case and you look at the totality of the circumstances when you look at the what this court said was a very act specific and very context specific inquiry the district court did not commit clear error and i think it's important to look at the clear error standard because in looking at the clear error standard the issue is did the district court get it clearly wro and the aftermath of what looks like a satisfactory assurance under two thousand six hundred and nine your honor i've not seen any case law a specific case that shows what happens when you talk about when you go to cover are you talking about the no cover about whether about the kind of problem we have here with with own assurance and other circumstances i think the defense referred to it as the noise and statement that the negated whether or not you can negate the assurance so they say confirms does anything after that have any meaning yes because you have to look at the entire  definite argument and source i just wonder if there is case law with more specific application to similar sorts of facts and i'm not aware of that your honor i think part of the issue is these cases are by their very nature so facts so are but i did want to touch on the clear error standard because i do believe it is a high burden that my opponent has to show it's not just whether or not this court disagrees with the in light of the record the way i view it i guess in layman's terms is can you follow the trail of evidence doesn't logically lead to this outcome maybe it could lead to more than one outcome that's kind of what this court was saying in two thousand and eighteen as divergent characterizations of the evidence reasonable fact finders could reached at least on paper reasonable fact finders can come to different conclusions but in this case the facts are there  can lead to court the district courts outcome even referred to this court even referred in two thousand and eighteen that the allegations we allege the mosaic was the were the mosaic of allegations was plausible and so the only issue was whether or not the district court would be so persuaded by that ed and it was so persuaded it weighed the evidence that it correctly applied the law and it reached this outcome it did not commit clear  the evidence tell us about the issue that the defense of the sizes were girding you know since b r c is needed to have just one supplier of carbon black assure consistency of of its quality of its product is that you're on that certainly weighs in favor of the view that price was being used as a pretext here to terminate when when you were being told that you didn't have a right to volume but you didn't have a right to but i think price was absolutely a pretext when you look at continental continentals in the market of supply and carbon black this is their business through the market maker and so to say that they're suddenly caught off guard by a flood a price fluctuation our market fluctuation is somewhat suspicious and what's most suspicious is if if it's  really a matter of supply then the st comment to b r c shouldn't have been we're going to have to raise the price should have been we're going to have to cut the quantity requirement because what in essence they're saying is it's available but it's dollars two cents higher price and ultimately we do know the bill because this may not be relevant to the repudiation she comes to the failure to mitigate in august of two thousand and eleven a mere three months later mr huntley comes to b district court explicitly made a credibility determination and said i am persuaded that this was a ploy this was leverage this was this was continental trying to get a better price and this isn't really unheard of by a supplier in a supply chain context i think back twenty years ago california was having an energy crisis not unlike it is now there were rolling blackouts the power companies were trying to get a better price governor gray davis then up caving in and agreed to a contract with much higher prices i think he got recall because of it afterwards investigations were done and so that issue and found that the five largest utilities were holding power and actually could have supplied enough power found that that continental's breach substantially impaired the value of law as a whole i believe that is a very straightforward issue because the price increase was not limited to just one shipment it wasn't limited to just shipments in june two thousand and eleven or may two thousand and eleven the price increase was to affect every shipment for the next three and a half years so the existence of such non conformity depends on the facts and circumstances of each case that's the standard for assessing but three minutes on that last point the price sheet that would be the price sheet that was issued was a june price sheet for the month of june so contrary to what mr roth just said it did not apply to the rest of the country on the issue of mr nunn lease testimony i don't think there's any way they could rely on it because he did not tell the truth the st time around and he was remarked in yet that version is also corroborated by mr scott correct i don't think so your honor not in the way that mr normally said it there's also the point that mr chafee said testified that they didn't rely on anything that mr nunley said to them in connection with terminating the agreement and that would apply also to that information that mr ross just described as b r c having learned on or about may twenty four that is what the volume projections were  the price increase request answer other than if they don't want to somebody else will take it you know question so the customers were made aware that if they didn't agree to the price increase they would receive urban black answer if they didn't these st is direct estimate right i suppose it is your honor but the fact is he retreated from that testimony on cross for a good reason he had to be consistent with his deposition  i guess in the end my perspective on this is i understand why b r c is focusing on all the things that happened before may twenty that support their case because really the only thing that happened after may twenty that supports their case is the sending of the price sheet in my view if you look at this standard positive absolute unconditional which requires some level of clarity you've got a unambiguous provision of adequate assurance you've got a partial order ships you've got a promise of another order ship you've got someone saying we're available for questions all that wind up against and you also have b r c subjective understanding that