our next case for argument is black card versus  arguing basically their implied contract yet the way that we look at this just briscoe is that in late december the relevant contact here is from essentially december two thousand and thirteen through two thousand and fourteen in december two thousand and thirteen you still have an express contract in two thousand and fourteen we believe there's an implied contract from that point basically on the terms of well i was really wasn't black card told probably probably told once you got into two thousand and fourteen that this is this is the last payment that we're giving you under our agreement in our our remit and our has ended the end of december twenty third they were told that right but they weren't to i think exactly what they were told is important they were told in an e mail you know i think february two thousand and fourteen that this is your last payment under the expired agreement which of course is true run but it doesn't go further and say and you're going to get further money from us until we ink the deal with new terms and if they added that last part the testimony of my client is that we would walk away from the deal at that point we were and i think the other key exchange to put all this and concept is in december of two thousand and thirteen and this is of appendix two fifty one if you want to look at it but in december of two thousand and thirteen my client asks these it where's the new language for that's going to govern in two thousand and fourteen and they're told and he's told well is basically done you've got to get it by legal but it's business as usual in the interim now my client certainly relied on that statement i thought but soon thereafter i mean really soon thereafter weren't there negotiations i mean these parties were working out trying to determine what their agreement would be going forward that that's true that they were there was continued performance while they were in the over the terms of the new agreement and i think that you know there's obviously to waste understand what's happening here one way i suppose just to think that look you know they're in a they're in sort of a no contract situation at all in early two thousand and fourteen and they're negotiating a new term but there's no existing contractual relationship we don't think that's the case at all we don't think that's consistent with the business as usual promise we don't think that's consistent with the way that the parties are interacting with each other i think it's very telling for example there's this back and forth that starts on december sixteenth two thousand and thirteen and continues through january seventeenth two thousand and fourteen the beginning of that is the basis for breach of the express contract claim but what's interesting about that interaction is of back and forth about the same marketing materials that when the challenge that house out of reach if you want to get to the express contract i was out of reach when when they are given a change in the language that is isn't a change in the language and they have under the express contract kendis in a stays in which to either say it doesn't work or it's those ten business days pass then it's accepted right isn't that the term those are the express contract those are the terms of that are expressed contract the problem is on december sixteenth with the original materials that we submit understand are sixteen they say hold the president you can't run the odds and that's what we materials we want to use and we're told no all the press then four days later we submit substantially modified mature eyes and those are old really approved on january seventeenth but are these bits with the non approval the refusal barclay went to the set and said have this look and then that is when they're in their time to either say yes or no again because now we have a revised marketing sure but never had anything to do with whether their refusal for the different the summer sixteenth five is cited in the two relevant places and where we specifically say that approval was unreasonably with help it's the only thing we know about it is that's a normal progenitor you have to admit that is the way to go here i mean if you're going to make an argument and tell the district court what you think the problem is and what the support is for your express contract claim that you have to bring that forward not there and then in an exhibit and say well i hope the court reads every and you know that's that's not a denial of not having evidence that's the gist it's not here son fortunate but i don't think it's a waiver ok thank you but the only point i really wanted to make is about this point is that when the calendar turns january the approval process or really anything else and i think insisting about its case there's two things that are critical in two thousand and fourteen two things are happening one is the approval process is taking place exactly as it was under the promotional agreement now vista has a suggestion that well maybe it would be the same under the brand standards program even in the absence of a promotional agreement now there's two critical response that one is at best that's an argument for the jury business as usual procedures so that's how they're understanding that continuing performance under a contract the other thing that i think is critical is that these is a black art is continuing to do something that's incredibly valuable fr perspective which is a continuing to market this product which gets high net worth individuals using the visa network now there's no question that it's tremendously valuable to visa that's why they were willing to pay for it under the promotional agreement willing to offer even more money going forward and why mastercard was willing to pay a lot of money for that privilege as well and only snow that you bring up mastercard don't we look at the actions of your client to negotiate with master card and w two thousand and fourteen like may or june the implied contract and i mean that's the most you get out of that proposition but the second thing i would say is it's just wrong to say anything we were doing by discussing things with mastercard was a breach of that agreement and needed a certain point we're continuing to negotiate over a new agreement with d c a lot i'm not saying it's a reach an agreement i'm saying it would cut against your argument that you have you're living and working under an implied contract  headed off into another direction well i don't think that just sort of doing some contingency planning would would be enough to deny them the implied contract and again i think the things that are critical is that even after we start talking the master card we're still running by the marketing materials and your business is usually if you're men shouldn't you i mean really we're talking about a trademark here that's pretty valuable i mean you really do that just as no we would not you're on a business person no we would not your honor not in the way we were doing it we would we would not maybe do something radically new with the trademark but the way that the agreement worked we had to run every if you look at the contract any use the word visa if they have in any way in any piece of promotional material in any point of sale display anywhere we have to use we need to use that is not something we would do just based on their trademark and again if they want to go to the jury and say they weren't doing this because there was an implied contract they were doing it because the trademark fine arguments made to a juror i was going to look to agreement had expired but the same made no such promise how about this this is usual so let's go to that category of the business as usual communications blackheart depends almost exclusively on one email and that was from february tenth two thousand and fourteen and that e mail simply cannot constitute the kind of clear manifestation of intent to continue this entire promotional agreement when you look to the words of that e mail and what it says is hi scott please proceed in marketing business as usual until we have a chance to discuss continue to run your material through barclays for review and approval so first of all there's there's no promise contained in that email at all it's just a request to do something well i know but what does the term business as usual mean doesn't that mean we're we're we're going to head like we've gone to work insinuating that it doesn't just as we've been doing you just can't cram all of the details that would be included in a full renewal of the printed promotional agreement into that one what was said doesn't hear and does track exactly what the parties have done before well let me step back on that because i think it's really important here to distinguish what the specific obligations were under the promotional agreement under the promotional agreement which was this really very small agreement relative to blackguard much bigger marketing agreement with barclays that consideration that was exchanged as that visa would make incentive payments and black card would keep its card exclusively on the visa network but that was the exchange that was happening there so visa primary obligation is to make incentive payments and twice in writing at the same time the same has told blackguards when this agreement expires we will not continue to make incentive payments so with respect to its primary obligation under this agreement it has said we are not going to continue to do this and let me point to the specific communications first there is an e mail and or an early december two thousand and thirteen and that's a supplemental appendix for seventeen or eighteen where beef assessed a blackguard you know if we don't have a new written agreement executed by the end of march your payments will be interrupted by that we have to have a new agreement in place if we're going to continue to make these incentive payments and then of course i think as as one of you pointed out just now after the agreement expires we then send another email and we say this is your last payment under our expired agreement and i understand what they're saying that oh well we're talking about the expired agreement but to try to read that e mail to say well our agreement is that our agreements over we're not going to make any more payments to read that as both but we have an implied contract under which we're going to have to convert in a down payment because we're fundamentally opposite readings but is that what they have to because in that case what it says is where a party has manifest its intent to not enter an agreement without a writing that is dispositive of whether there is an implied contract that's available and here we said that we've said unless we have kept count counsel you were here on a a summary judgment and we've got to look at this in the most favorable light to the nonmoving parties and i'm really hung up on the words continue business you all the rest of the issues are great i'm not too concerned about bill but everything you're telling me in regards to that it is a material fact that a jury might need to get the chance to hear cells you need to release for me personally very down on why that is not a jury question i understand your argument i understand here nobody agrees so it's a fact me i think it's also undisputed that black heart stopped performing when it went off to negotiate its deal with mastercard agreed so now what real looking at what does this is usual mean and i would say even if you had a straightforward no other details around of business as usual that wouldn't be enough to get over the very clear statements wouldn't be more than a scintilla of evidence to to get over the fact of the clear communication that we weren't going to perform and nobody did continue to perform however we don't even have and that email something that rises to that level because you do have to look at those words in the context that they're written and you do for an implied contract have  clear manifestation of intent to continue and when you look at those words in that e mail they are very specific to a marketing channeling procedure tell me what does continue business as usual than just m the e mail tells us what it means because it says continue to run your material past barclays and let me use that because when you know that the military thing about review of marketing materials and about what hard is try to make the case that because these to continue to review marketing materials that that was a continued performance of the promotional agreement but it's not the same has the right to review marketing materials regardless of whether there's any promotional agreements and so when you look at look at this e mail that  about whether it was going to continue to perform and you know there are i think two other business as usual emails that come much later they aren't communications to black card they're from the such a barclays but what you'll see when you look at is they are exactly the same they are very specific to how are we sending our marketing materials through the channels for review and just to come back to the to his mr comment point that well this was a service that was  separate agreement which it had already renewed it was obligated to continue marketing its card that was the whole reason for its business and of course it was incredibly lucretius a blackguard to continue to market its car regardless of whether it had this little extra add on agreement with visa and so this would really be the tail wagging the dog to suggest that blackguard would have been motivated only to proceed in marketing if it had this little extra bring them to visa it's not logical when let me turn i want to come back to your point just as i just judge i had on the waiver with respect to the express contract claim because i think if we i want to add a few more details from the record here and i you know as i look at  point of waiver and why the court doesn't consider arguments not presented in this report is because it's not fair to the senate and it's not fair to the district court to be tapped with responding to argument that they didn't have a chance to develop below and here when you go back and you look at how blackheart pled it's breach of express contract claim what it says is there was an unreasonable the leg that's what it says when it and its complaint about the breach of contract cla soft black card in discovery what is what is the basis for that breach of contract claim and they said see our complaint of course then we took the deposition in the thirty six deposition a black card and we asked what is the basis for the breach of the express contract playing in this december two thousand and thirteen period and the answer was i don't think there was a bridge we moved for summary judgment on the plane and in the summary judgment response there is one sentence of argument that says there was the materials run reasonably rejected and then of course at the summary judgment hearing abdullah presses on this point says wait where is the rejection and what part boyer says it's in the record but i'm not sure where it is and on that record we had no way no way to defend this notion that there are a whole the press as was not an unreasonable withhold all withholding of approval and so we do think that that argument has been weighed we didn't have an opportunity to respond to it the district court judge didn't have an opportunity to consider it about the fact that they did cite to the exhibit and the only thing peril in that exhibit is hold the press but that that's true your honor i would just say particular exhibit to support the breach they're just there just wasn't an opportunity to make this argument or to develop any discovery about it from from visa's point of view and so i think the mere citation in the statement of facts so one piece of evidence in the record is not sufficient and they do cited in the in the argument it's just cited as an exhibit isn't that correct i don't think that's correct your honor i believe that in their arguments on breach of express contract and their summary judgment response there is no citation to anything there is one sentence that says there was an unreasonable rejection with no citations and then again it's come to the merits of that argument they submitted their materials we responded within minutes and said hold the presses will give you a shout clearly inviting a discussion of the and then of course they submitted revised materials shortly thereafter which we discussed and then approved and that's exactly how this contract provision was supposed to work with fill out the parties to work out any differences now have they really believed that it was an unreasonable rejection of their materials when we sent that hold the presses email and that we were breaching the contract they had to give notice of that and give us a chance to cure and of course no one no one from blackheart ever said that the unreasonable that's a breach and of course you know when when pressed a deposition the thirty six witnesses could not identify any breach  i want to come back to you know it in this case the so clearly told black card it was not going to continue and finish payments without a new written agreement it told them that the agreement was over that the last payment had been made vsa never performed any further obligations to make any payments blackguards never demanded that the visa make any further payments and blackguard almost immediately went off to negotiate a new deal with mastercard under those undisputed f a summary judgment is appropriate on the implied contract claims as well as the a sample in unjust enrichment claims and for the reasons we talked about with respect to the breach of express contract we believe it's waves but also that the undisputed evidence system few quick points in rebuttal the first is critical which is the same as a strategy of saying that the business as usual only stems from this february email and that is just contrary to the record the business as usual reference that's probably the single most important one is from the deposition testimony of blackheart c e o which is appendix page two fifty one where he said that in december of two thousand and thirteen when he inquires about where is the new promotional agreement for next year he's told a you know it's basically done we gotta get it by legal but in the interim business as usual so any that's not constrained to marketing incentives directly in the context of a worst new language worse new written agreement that seems far more important than the february e mail which quarter collaborative corroborative but i wouldn't let them get away with focusing just on that said you were e mailed a two fifty one it's the single most important testimony on that the second point i'd like to make is the continued performance throughout two thousand fourteen now they want to say that the marketing is done just pursuant to the brand standards we have to do it anyways that is a factual dispute and it's inconsistent with the record as i noted earlier as late as november two thousand and fourteen barclays is getting approval for this material and it's referencing the business as usual protocol so that's one way there's continuing performance this is a good excuse me counsel to your client continue to receive you compensation from visa after the