one four two nine i am reserving eight minutes of my time to for rebuttal primarily but presumably to address seventeen one four two nine but we'll see and i'd like to start with the in cannes appeal and sixteen one two six five this is an appeal of the judgment that the district court entered on in can a breach of contract claim the sole basis for that judgment was this room is waiver defense which was submitted to the jury without any proof of consideration associated with that alleged waiver or that any proof of what we regard as sufficient signed writing that could substitute for consideration and i think the primary issue for this court on appeal is whether the district court committed a legal error when it allowed the defense to go to the jury without  of consideration or assigned writing as we explained in our papers we think this was clear error by the district court because michigan law for the first announced in a supreme court decision called badcock followed by several subsequent michigan court of appeal decisions and decisions of federal court the playing michigan law and finally memorialized in the michigan standard form jury instructions how do you deal with mccarty in which they just provided a cite for we would first object to its consideration given that  hundred sixty four that wasn't provided until two days before argument assuming a but it's still the supreme court i'm going to let's just assume the three of us are going to go find it by fair enough but we think it's irrelevant to the issue that was before the district court and this court as we read in mccarty what was really being considered there was the question of whether a written contract that had allegedly been modified via an oral agreement could then have the oral modification and forced the court said that if the parties continued to perform the contract after the modification that sufficient consideration because they must they are obviously benefiting from the continued contractual relationship and that continued performance that continued benefit itself was the continued performance in accord with the modification or was it continued performance in accord with the original contract i believe it was continued performance in accord with both and to the extent there that that's how we read the opinion and that really is not the issue here that's not the facts presented here i mean the fact pattern here is in canada had a right to recovery of this of one point eight million dollars there's a phone call between and can employee  and does run the employee where she said the good news is good to keep it that was then later retracted by and can there's no consideration that this room is ever gave in canada there's no signed writing memorializing and can't hear by waves it's right to recover that money signed by in canada nothing like that and the babcock case in other cases pacifically say when and when there is an allegation that a right has been relinquished or released that has to be supported by consideration if we agree with you whether this was a substantial right because the babcock case in the form jury instruction says waiver of a substantial right requires consideration and as we've explained in our papers this was clearly a substantial right it was virtually in can it's only right to the contract to get this money back  what about their just deal with the arguments briefly on the tax form and the email about the two million losing the two million so the michigan statute five c m c l five six six point one that says writing can sometimes substitute for consideration that says it has been interpreted by michigan courts to require that the agreement be in the writing that and so i think in this case in canada would have had to say we here by waive our right to get this money or you don't have to pay the money back something like that there is nothing like that here obviously the ten ninety nine form says nothing at all about this around his legal obligations to return the money but why it why would you file a ten thousand nine because at that point in time the encana had paid the two million dollars they had they'd had the money for six months at that time they had not returned it and get it the only truthful thing that encana could have said to the i r s at that time was we paid them two million dollars in two thousand and ten which was true that's why the ten ninety nine when out the other shortcoming of the ten ninety nine is that it's not signed by e mail chain from july fourteenth it which is actually before the alleged waiver happened and of course an e mail chain it wasn't signed by anyone with a clearly insufficient turning to their cross appeal must you have any more questions on our  appeal on the and i trust claimed the granta summary judgment we think was clearly appropriate this court's president has made it very clear that in order for a section one conspiracy claim to survive summary judgment the evidence has to tend to exclude the possibility that the acting independently when they engaged in the conduct that supposedly gave rise to the claim there's a lot of i mean there's a lot of evidence with all of these e mails and communications and everything else why me why shouldn't that go to the jury for the jury to figure it out when there's evidence going both ways because the e mails that were exchanged between can and chesapeake were exchanged in may in june of two thousand and ten and at the same time those e mails were exchanged encana chesapeake were undisputedly engaged in price competition for those around but secret at the same time all those e mails are being exchanged about the possible joint venture in cannes and chesapeake are driving up each other's prices by over a thousand dollars each in both cases of evidence of competition moreover there was a point in those email chains and june twenty fifth and we discussed this in our third brief where so much has big actually said hey because we're in these joint venture negotiations why don't we stand down and some of the private landowners that we're currently been each other up on internal e mails on both in canada and chesapeake side agreed that that repurposing was rejected and moreover later that day both companies increase their prices in response to th saying you know what in canada chesapeake is outbid you what about the evidence that on june twenty ninth the day the deal fell apart with chesapeake there was a phone call between the two companies and then and kana comes and and gets the deal  members theory there is that in that phone call there was some kind of agreement that chesapeake would back out in canada right and there's no evidence for any of that in fact the first if but why couldn't the jury conclude just assuming this go to the jury why couldn't they conclude from the combination of what occurred plus the phone call that something was said that is that improper speculation it is improper speculation your honor because at that point in time buzz that proposal on june twenty sixth two days before the phone call we have internal and rebutted e mails from chesapeake then on june twenty eighth the day before the phone call chesapeake was talking internally about asking those around us to bear post production costs and in fact chesapeake o instructed their land agent during the june twenty ninth negotiation between chesapeake and to argue on post production cost so there's utterly no evidence that chesapeake changed its position in response to that phone call the other in critically inconsistent is offer ahead the increased dollar per acre twenty nine hundred dollars that it offered only because of competition with chesapeake it has been on for quite a yeah sorry i'll stop there i think we're not catching a breath and i assumed you were answering judge the car every time he tells you well this is this it's just a question of fact that's all it is when i go through the e mails and everything else where is the affirmative evidence of agreement because he is right right that there is evidence that they were beating each other up that they didn't have currently working a letter of intent that's what they said that's right that's not a letter of intent as we both know is not in agreement even if you get to a letter of intent right and then they continue and i'm on june twenty nin you know you first take the fifth amendment saying it's going to criminal law you got to have affirmative evidence we don't know it when you retract when you retract saying that that now tell you that nothing happened that is a question of fact and the fact that jacobson still refuses to testify about what happened on june twenty ninth and that one of the thing that's been totally ignored jacobson was hold on i'm sorry to interrupt you was jacobson chesapeake's correct and he was on the phone with with shop at the same time one point in fact that's been ignored i think to completely answer the question is then everything that happened afterwards they had planned to divide it up and yes on july fifteenth they both go to zero and prices dropped by fifty percent exactly what they planned then in october four months later exactly what they planned they don't bid against each other and may every single piece of property was bid against each other and i can i see the let's assume between july and october that they are that they have an agreement is there any evidence on their record that you that your clients those around us went out on the open market and try to lease on the open market during that period of trying to lease we're trying to sell or sell i'm sorry tried to leas and nobody would buy it and here's why wait but as you know you're not as from my question is there any evidence in the record that your client went out onto the open market and tried to suggest we call the chesapeake and cana and there's evidence  know they had bought ninety percent of the product i understand that they are the mark weight can just this is an important point i just want to understand it between july and october you're saying in their deposition testimony if i go read it i'll testimony trial testimony i'm sorry from three thousand to fifty dollars no one's going to buy their property for any more than fifty dollars an acre so the effect of the price going down and the exact same it's kind of the case if you had judged more i go back to judge bush's question because i think it's important so is their testimony because these claims summary judgment was granted correct is their testimony pre the summary judgment in depositions that they went out on the open market and saw  raised at some disposition and therefore we didn't respond to it i think it was there i know what happened to trial that's all i can talk a go ahead i'm sorry talking under but october's important evidence in the case that you had you don't judge more  evidence of and actually happening is proof what they said they tried to cover it up and that's another thing too you have two separate times to try to cover it up first by the fifth amendment and then by e mail saying or the conversation another conversation can jacobson and shop where they say let's make it look competitive well if it isn't complete if it's didn't have agreement you don't have to make it look quote competitive you don't have to make it look not sliced and diced if there wasn't an agreement the only reason it would would not be sliced and diced is if there was an agreement and there was one and they acted in conformance the jury has to make one and only one assumption in this case one interests they have to say based upon all the evidence that what they plan to do what would save them billions what they took the fifth amendment to refuse to talk about what their attorney said don't put in writing what they tried to hide by making it look not sliced and diced and everything that they said they would do actually it did happen and i told them everything happened as they planned it it's kind of like you plan the perfect murder and the person dies the exact same way that is planned and you say we didn't do it you did and it's certainly not to get to a jury that's what about what about their argument that the reason prices were going down is they found out there really was no there there was nothing that happened between june twenty ninth when they were in june twenty ninth and chesapeake's the sixty three million suddenly they don't want it so now we can force to take seven million dollars last because presumably that's what happened during the phone call and then between that date and july fifteenth nothing changed and they both go to zero a year and they drop prices by fifty percent you were forced to take seven million last week didn't have to pay the production costs we think that's true and that would have been that but still they want to put seven million and went back and take it if we knew they were lying which goes to the product line but would and should have had as yet i trust evidence that would help support it and mr nourse number for brother testified you don't have twenty eight separate objections five stern warnings five things being stricken they knew what they were doing these are two forty year attorneys and forty year to forty year attorney to ask the questions and mr gore to answer them it's just wrong you don't do that it tainted the trial he was doing things he shouldn't have done but to go back to a question as to you know back in the parts because of other things as the judge correctly noted and  correctly notes that's just a question of fact as to really was that the reason judge only noticed that when he said dr can i could testify he says whether or not the prices drop because there's more land or because of whatever excuse they wan that's just a question of fact and here's the biggest reason why it's a question of fact if you read the july fifteenth letter when they tell us around where you shot and i had two important things one they don't ask for the money back why because you already said you can keep it it you continue to find excuses that differ from the excuse you originally used is a question of how can you how many times you try to get out of it you give one excuse as i want to work let me come up with another one oh well that there's nothing new about that but that's the excuse an excuse becomes a question of fact did you just have to believe the excuse there is a trial brief it's really a trial before the closing argument it's not whether it should have went to the jury this should have went to the significant minority of states including seems to me michigan that require consideration when i think there's also cases saying you don't require consideration steady and even your best case from michigan that says you don't need consideration for a waiver really same thing but forgive me wait give me your best case that you don't need consideration for what else as it which i would talk about for children i prefer as well and the statute m c l five sixty six point zero one says for modification which is just really what it is is what they are you don't the market failure to do is the consideration they wanted that they wanted everything to die down on july twentieth we wrote them saying hey you stole my money and they're saying no don't worry about it you can keep the money don't worry and they never ever ever ask for it they tend ninety everything die down because they didn't want to build a lot of lawsuits right then they wanted to be able to valuate the market see what happens give us time decide what to do if you read about it back and forth maybe it will settle let's see what's going on and let everything die down but letting everything die down is not considered a failure to sue is what you're arguing that is wanted and very awkward we said fine you've had one you know it's there it is what the right thing fine is in consideration if they thought it benefited them to do what they did so they thought it benefited them to make that offer we responded if they didn't think it would benefit them why did they do it why did their internal e mail say they gave it up it's not just it's not just internal e mails it's not just the writing she said it and the ten and i never revoking it i'll stop  to start you just ended two factual points encana did request the money back they sent a letter on august third two thousand and ten asking for return of the money so we did ask for a back as never agreed or even offered for bear to see you and indeed they sued us which is there any case on that one way or the other you frank that this is the very first time that argument has been made in this case and i would regard that it's been waived at this point this was never an argument made to judge maloney and at any point and so i don't know offhand if what  the case law might say there but there is never there is no evidence that the parties talked about we will hear that those around as would forbear suing for it because they put no evidence in the record below consideration by a failure to sue no one testified to it there's nothing there that's right contract and that included what happened in fitzgerald which the court there regarded as an election of record its case because in fitzgerald the house was being built in the couple it was being built for were unhappy they sued to rescind the contract and the builder said no no don't don't do that just wait to let the build and if you don't like it then you don't have to take it and i think the court of appeals thinking was that when he said that he was electing the remedy of waiting until the house was built to demand performance by the other side and was forbearing of their obligation to keep paying him money which was what his breach of contract suit against them once was about so that's an election of remedy this case and what the fitzgerald court said is collection of the in the nature of an election doesn't require consideration waiver which rises to the level of a contract does and as we said in our brief we think babcock very clearly says waiver of a substantial right is a matter of contract and therefore it doesn't say therefore but and is and requires consideration and remind me what your badcock was decided i believe off with sixty one ok it was so so that's a long time ago yet it has the michigan july fifteenth first it was undisputed in the record that chesapeake did not actually stop leasing on july fifteenth the record indicated that july fifteenth chesapeake heard from the market they heard rumors from the field they were reading message boards that encana had stopped leasing their internal chesapeake e mails on july fifteenth and sixteen where the c e o of chesapeake says this makes me nervous should we be doing the same thing why don't we ask in kana why they did what they did and they did it asking can away with the and i want to stop there for a second because that by itself fundamentally undermines this around this theory that the july fifteenth decision was a result of collusion chesapeake had no idea that it can it was going to stop policing before  candidate speak had no idea why you can't stop it that is opposite to their theory of collusion be a record is also undisputed that chesapeake didn't stop losing until july twenty fourth and they did it because they get a poor well canada's july fifteen decision was based on the new well results that in canada have received that's that's not what happened what about this board meeting so what the letter the letter that he was referring to that john  drums on july fifteenth said we're not going to go able to go forward with the deal because the board want to prove the transaction i forget i forget the exact language but there was a reference to the fact that this was subject board approval in the board won't provide thing there was no reference to we had a board meeting and the board said no that's their spin on that and that record and what the team and what the record evidence showed is that what happened on july fifteenth is that being in cannes executive team which is kind of the management layer between the board above and the new avengers team beneath which are the team really dealing with michigan the executive team in the you know in the early july began do have questions about whether they were really following the right strategy in michigan  and elsewhere but working why if you didn't have the well results were and you are send the contract on us because in canada determined that they had already acquired a substantial land position in michigan  and before they spent additional money and leasing they wanted to drill a second well it was intelligent in the july fifteenth decision was not just let's step leagues in the july fifteenth decision was let's pause releasing let's drill a new well to get a better handle on the commercial viability of this play let's sell a significant portion of our acreage in the southern portion of the play because we've already determined that we don't think that commercially viable or at least worth holding was let's not engage in any further leasing with anyone it wasn't just this around us until we've got a better handle on how valuable the secret actually is and it was undisputed that they didn't discuss any of this with chesapeake but what about the fact that jacobson continued to take the fifth i don't think that can be attributed to encana he was a chesapeake employee not encana employee and so i think it has i think it's a matter of law that can't be a true that could only be attributed sometimes or about his employer why couldn't we use it is evidence i agree you simply not true that there is the crime bring evidence but moreover shop testified about the same conversation and he had printed the question is whether it gets to the jury or not not how not balancing it all how would we decide i don't think the jury could reasonably infer and i certainly don't think that that inference standing by itself could infer that yes there was an agreement between these two companies when there is testimony about what was actually said in those phone calls and there's no corroborating testimony of an actual half of that conversation did not revoke the privilege that would that would get them past that standard thank you as you said you read the entire file all of the evidence john says parse out one little date and say we can twist this one thing that way to get out of it looking at everything there is overwhelming evidence the tended to exclude notice when he got up there he said they had to exclude independent that's the same thing the judge maloney was misstated it's tending to exclude here's a bunch of actions are clearly not independent we appear to have agreed to make it look quite competitive not sliced and diced this is chesapeake land how assigned to a piano under the agreement why did that just happen in may auction people bid on every single piece of property and october the world changed to separate properties how could that have happened if there wasn't an agreement  as you know like again is just more fun the walk in the carpet case these facts show because it actually happened as they planned it the person was murdered the same way they planned it and they're saying they didn't do it because they have cover up email saying oh we didn't know still taking the fifth amendment why you know because they're covering it up their attorney says don't put it in writing the fact that there's no writing is not shocking when the attorney says don't put it in writing that's again a cover up make it look competitive covered it up and that they were in the guilty was far enough to write an excuse and a piece of paper did we didn't know we didn't do it that doesn't mean they're innocent if the jury can still say you know what you're lying when you said you didn't do it the only thing you have to believe is that they did what they plan