to true north upon the acquisition of any selected target by h m a s its affiliates or subsidiaries during the term or a twelve month tail period the selected targets were to be agreed in writing and true north was only permitted to solicit the selected targets for an acquisition the selected targets were put on a list that was designated the tier one list to be distinguished from the t if you're talking about jurisdiction that's another question just one with well under principles of agency it's not uncommon for a non signatory to be held liable and there there plenty of evidence showing that him a was acting at the direction and control of its parent company hitachi metals ltd h m l the eventually quashed the one deal that the parties worked on the most and along the way they were r the terms here acquire the company correct right but him in the american company agreed that if it's affiliate went out of did that h m s a would per se you're not looking for money from the correct but him a is obligated if and eight if an affiliate of him a acquires a selected target the only investment that is subject to this agreement is one that is made by the company correct sentence that says in defining what the companies said for the avoidance of doubt the term company h m s shall include subsidiaries or affiliated companies formed by the a participate in an investment that is to say basically an investment vehicle special purpose that the parent is not created by the subsidiary for the purpose of entering into the transaction it's all right let's look at that h m l for a special purpose entity that entity too was included in the definition of company and the reason this is included is i thought it was very smart i did freeze formed by the company to complete or participate in an investment modifies the term affiliated companies and may very well modify the term subsidiaries as well oh i think that's an erroneous word you know what you're doing is you're is you're you have a circular definition of everything everything is a subsidiary of everything i think that's an erroneous reading the purpose of this because under the ellington versus e m i case the future affiliate is not included in the definition of affiliate unless the agreement specifically says so right so how could so what you're saying is the word affiliate no longer  other affiliates then special purpose entities and that can't possibly be the case but it does because it lists additional it lists affiliates explicitly and in fact you're saying the fourth for the avoidance terms it was intended to broaden not narrow because the for the avoidance of doubt clause has two components one it expands company to include future affiliates future affiliates it also expands selected target to include all entities or affiliated companies that are acquired with this selected target it was an expansionary clause it was not intended to narrow the definition of affiliate it says nothing like that i believe your honor is mistaken with all due respect and i've done that before later after a conversation between mr gaiety and true north there's a sentence on page eighteen of your adversary's brief and it says ppaca never appeared in any version of true north cohen spreadsheets on any title target list is that correct first of all they were not call logs that's that's a fabrication  were excel spreadsheets if you're familiar with the software they have various tabs ok the initial list was on the tab one that all the subsequent tabs had only included  a they are correct that it never made it wasn't written on the first tab but once they got to version it was reversed tab typed target i believe targets the war pack and never appeared on the list titled target it appeared on the tier one list which were the selected targets so and that was the working list it's very it was that generated sorry when w the tier one list generated it was not of the initial communication it was what it was immediately following mr gaieties e mail of march sixth the parties true north researched the facilities came up with a selected target list and it was labeled to one again these are the ones that they're authorized to solicit so you know the that objection by the way is is missing the forest for the trees and i'm not criticizing  criticizing the argument raised by hitachi because version three was the final selected target list followed by version four version three was a single tab where did the the case of crabtree versus elizabeth arden which held the one nine hundred fifty three new york court of appeals case which held that group of writings when taken together may constitute writing a written agreement provided one of them is signed when you look at all the writings together they do establish an agreement you do not under under crabtree versus elizabeth arden parole evidence is admissible to connect the documents to show the circumstances and to prove that the party to be charged assented or acquiesced to the unsigned document ok we have an e mail of april seventh two thousand it there were four other targets that were similar and they were all selected targets so why would only want pack be the one deemed not to be a selected target because it was in active this wasn't exclusive  targets can become active that's the whole point and that's exactly what happened here and it happened several times during the during the course of these parties deal used to get a motive i mean it was too late because somebody else was already bidding for it and that and that entity bought it then it was too late and it never never became anything but too late true it obviously became active during the tail period when h m l went in acquired it without telling too much let's also understand that from the beginning s a went behind north's back and started meeting with what packer held secret meetings with what packer and and grady which was an undisputed selected target we are dealing here with the country you have referred to was titled comments but the spreadsheet was titled tier one and that's that's that's the big distinction the court district court inferred you know all kinds of facts and they were the and the piece of paper that had to or one at the and is don't think about it because it's too late you know that why is it says does not seem likely does not seem likely likely does not mean it's not a selected target as i said there were four others if if any of the other four had become active during the tail period h t m l had acquired one of those wouldn't you north be entitled to the completion the yes so why would want that to be treated any differently we're just asking that the agreement be interpreted consistently because what the what the district court did hear was it actually found essentially found that all the names on the one version three in version four of the tier one list were selected targets except one pack and i don't think any jury would ever believe that ok case can be resolved based on the plain language of the contract that language limited the completion fee to investments in selected targets and because of language added by may to try to avoid this very dispute it expressly required that a target can only become a selected target eligible for the fee if agreed in writing to make it one here's what we know about the agreed to selected targets and this comes directly from true norse opening brief on page five so everything i'm saying is undisputed on march sixth two thousand and twelve the day after a t m a signed the contract officials from true north an h m a met to discuss targets based on true north's own description two important things happened at that initial meeting first true north provided with a list of nearly two hundred what it calls potential selected targets and what packet was included on true norse list of potential second during that meeting the president of h m a mr coo botha stated that pete gaiety would take the lead for him and identifying selected targets so everyone understood that h m a's list of selected targets would come from m later that same day after the meeting had concluded mr gaiety sin in email to true north copying mr capote and others of him a stating quote here is the list and he listed twenty two companies and  arget list what difference does that make when the issue really is it is selected time yes you are so let me just i was saying does the pee on the target list but true north puts it on a tier one list or selected target list because it just a rose why why put it on the target list if it really gets promoted to being on the on the selected list or tier one which i understand is the same thing not same thing your honor and that's the confusion a selected targets is that e mail i was just describing your honor from from mr gaiety sent on march sixth that says here is the list on behalf of h m a that has twenty two company's desire to know those are specific lines of decent matic equipment diesel matic equipment allows for fast sand casting of metal and those are particular lines production lines with decent equipment and they were looking for facilities that had those specific lines and that was all they were looking for so the point your honor with my reciting this fact is that the only thing that is in this record that it represents any writing by h in may identifying selected targets is that march sixth email from mr gaiety that that e mail to version three your brief said that this bridge which was sent by included only one tab titled comments which i took to mean that there was no tab or at least no list that was headed to your one selected targets is that correct so i think on version three consistent according to your brief nothing but comments i believe that's correct i think the version three that was emailed did not have on it the if i could just pick one minute and give oh yeah i'm just trying to figure out what happened so so  since this list a says here's the list it's on march six what happens then is true north says thank you they put it into a spreadsheet and they send it back on march fifteenth and everyone agrees that that represents  agreement by both sides as to what are the selected targets at that time ppaca is down on the list we might have been to after that mr gandhi has sent the list that they want to correct that's right what happens after that is true north begins making phone calls and contacts and it captures the information that it up taints from those contacts into a spreadsheet most of the spreadsheets that they send had to tabs one label target targets and one that said comments and i think there was someone that had a third that said unlikely ppaca never appeared in any of their own spreadsheets that had on a tab that said targets it appeared only under comments or unlikely and every time it appear information because there's always the potential that the parties could agree to add another company to the list if none of the ones on the selected target list pans out they could go to another one but in order for that to happen there has to be an agreement in writing a distinction between indicate whether they're available for sale without mentioning the client there was lots of information that was being gathered and shared back and i didn't ask that actually your question i'm sorry is your distinction between selected targets and targets based on the idea that only with selected targets could true north identify hitachi as the entity it is working for no your honor what the contract says is that where that can happen and it says that they can't contact any of the targets without our approval first and so that the designation as a selected target necessarily implies that they can make contact and share some information that's in the agree was told by true north that hitachi is the company the true north was represented there is there is a declaration from mr rose eddy of true north that he did that's the only information specifically to that in it and and  you know there hasn't really been for a discovery around that so that is in there that's there that statement of course has no way to know whether it's true or not but what is what is true and what is clear is that in order for an interview to become a selected target eligible for the fee that the contract requires that you may agree in writing and merely receiving passively some documents that it contains call information from the other party can't possibly satisfy that requirement that we agree in writing to make them and in writing mutually agreed to by the parties under the country in my correct i think two things could happen in that circumstance around what is the parties could agree to add up to the list and right in that you know you did then it would be covered if not then you're right they would not be paid and i believe in their brief true nor says the same thing they said that if if there was an entity that was not designated as a selective target that ended up what's on the tier two less that we purchased they would not be entitled to the fees so i think it follows the fact that sharing information about their calls in their spreadsheet they had a comments column that does it had one packet listed as a as a at a target list column which at least to me doesn't say new targets are wrong constitute an agreement in writing by h in may to make them a specific target there has to be something in writing from a to me doing that and there's nothing and the only thing that does exist is that initial e mail which everyone agrees created a list of selected targets that we agreed to also have these other arguments that we've made about how the parents are not included in the contractual term of affiliate and also with regard to the stumps and of new york law about procuring cause that we think also applies in this case  reach those issues because jurisdiction it did not want to do it on jurisdiction yes it did not reach the procuring cause there is a footnote at the end of the district court's brief which is perhaps a little cryptic but it does seem to resolve and grant summary judgment that the contract does not authorize reaching the parents that's footnote eleven the bottom line is this h m a insisted upon and agree in writing a requirement before a company could become a selected target eligible for the completion fee it acted at all times consistent with that requirement there's no waiver here in the definition of the company it says it includes  in it refers to hitachi metals america its subsidiaries and if it's use right now the phone line sentence makes clear that the term affiliates includes affiliated but not that would include a parent with respect we don't think so your honor we think and we've cited dictionaries and other authorities for the proposition that the term affiliate is distinct from parent you say that the parent company is affiliated with  think you could say that the subsidiary is an affiliate of the parent i don't think you would say the parent is an affiliate it's very hard to have family relationships that like go one way but don't go back the other way well i think it was specially when you read this language in total and you look at all the ways in which the definition of company plays out here what you have and it's clear first of all that the focus here is on h m a which is a relatively small u s subsidiary and the only specific  affiliate that's referenced is h e m a c which again is a subsidiary of it and then the the reference to affiliate comes up again i am inclined to agree that it would make very little sense to include  affiliates because that would be the big company would be a large number of companies eleven hundred you know and that's where i started out i think you have a series has a good argument that that's the word that's used and if it includes hundreds of companies when they clarified in the language your honour's have already pointed to for avoidance of doubt they used the reference of affiliated companies to refer again to companies that would be controlled to some degree by  that's we think the most natural reading of affiliate on the plain language of this agreement that it's companies that are either subsidiaries meaning they're wholly majority owned by a two may or affiliates meaning they have substantial control but perhaps not enough to make it a subsidiary that's the way in which this contract uses the term that is a fully accepted common usage of the term affiliate as the authorities on pages forty nine of fifty of our brief illustrates and voids the absurdity of this relatively small us subsidiary agreeing to a contract that what over eleven hundred affiliated companies and their expansive definition apply in addition when the parties did through a signed writing extend this agreement the language focuses only on h m a and doesn't include you a for any revenue hundred companies that means eleven hundred companies are philly's as if their argument is accepted and that's what we're saying is clearly not what was intended by the parties to this contract a selected target from just an ordinary that's correct and that is the key distinction between other than the writing requirement the key distinction is true north was not allowed to solicit any companies other than selected targets this contract and it was such material issue why didn't hitachi ever object they were told of the solicitations they met repeatedly and discussed in fact they discussed what pakis pacifically true the tier one less have gaiety next to the name ppaca saying yes it was not interested but again i you know that was at the time this unlikely candidate became very viable later on i'd also like to mention  t the idea that tier one is true north nomenclature is a little bit deceiving yes it was true north sloman nomenclature but there's no evidence that him he did not understand what that meant and agreed to it in fact mr gaiety himself wrote the words to your one on version four of the selected target list his own handwriting and you know his evasiveness in his deposition was could be the that he was writing that down because that's an unfamiliar term but that when used by true north and he wanted to put that in so let's say he was learning it for the first time he was writing ok this is the tier one list that doesn't mean he doesn't understand  respect to the e mail evidence i didn't get to complete the my description of the e mail evidence that there are several internal emails where hitachi metals circulated the version three  list and discussed its contents amongst themselves and they returned it to true north with him corey about one of the other targets having asked themselves internally whether true north had completed investigation because they'd found out what pocket might be for sale and here you again you know if you allow these writings in themselves are sufficient when taken in conjunction with a six page detailed written agreement not only to satisfy the statute of frauds but to prove an agreement that will pack was a selected target with respect to  package but then later did but the agreement by necessary implication which is a phrase used in the morpheus case that hitachi is cited does mandate that it be interpreted as a and exclusive in exclusive right with respect to select selected targets it says any selected target of the acquisition of any selected target these services required are only those requested by  so that it was in exchange for this exclusivity it was limited to during the term and a one year period thereafter tale period and it was limited to selected targets thank you and thank you both we reserve decision this time