[00:00:01] Speaker 02:
Case number 17-7169.

[00:00:53] Speaker 03:
Thank you, Your Honors, and may it please the Court.

[00:00:55] Speaker 03:
Jonathan Franklin for the appellant Kenneth Feld.

[00:00:58] Speaker 03:
In my limited time, I would like to focus on the District Court's error in granting summary judgment on the question of contract formation, despite the existence of material disputes of fact as to whether or not the parties did agree.

[00:01:13] Speaker 03:
The District Court found that an oral agreement that potentially was and ended up being worth

[00:01:19] Speaker 03:
more than $2 million was entered into in a single phone call between Mr. Kirk, who is FFIC's representative, and Ms.

[00:01:28] Speaker 03:
Mu, who is a law firm associate working on Mr. Feld's case.

[00:01:33] Speaker 03:
But the parties to that conversation, the only two parties,

[00:01:38] Speaker 03:
gave materially different testimony as to what was said during that call.

[00:01:43] Speaker 03:
The district court essentially credited Mr. Kirk's rendition holding that the oral agreement was reached when Ms.

[00:01:50] Speaker 03:
Mu allegedly either proposed higher rates than the ones that Mr. Kirk had initially suggested or asked whether Mr. Kirk could do so.

[00:02:00] Speaker 03:
And then Mr. Kirk allegedly either accepted her counter proposal or made a new offer that she then accepted.

[00:02:07] Speaker 02:
But didn't the district court have an alternate basis for this finding?

[00:02:13] Speaker 02:
And it wasn't limited to the October 4 telephone conversation?

[00:02:18] Speaker 02:
The subsequent correspondence as well?

[00:02:21] Speaker 03:
Yes, and I can get into that now, if Your Honor wishes, I was going to address the oral agreement first.

[00:02:26] Speaker 03:
But if Your Honor would like me to go to that, I will.

[00:02:29] Speaker 03:
I would just say on the oral agreement,

[00:02:31] Speaker 03:
Ms.

[00:02:31] Speaker 03:
Mew's testimony was unequivocal.

[00:02:33] Speaker 03:
She never proposed different rates.

[00:02:36] Speaker 03:
She said when Mr. Kirk proposed rates that he wanted, she just said nothing.

[00:02:41] Speaker 03:
She said she never indicated that Mr. Feld wanted different rates to apply.

[00:02:47] Speaker 03:
She was a junior member of the Feld team and simply understood her role as conveying information to Kirk about the case and listening to what he had to say and conveying it to the rest of the team.

[00:02:58] Speaker 03:
To get to the alternative argument,

[00:03:01] Speaker 03:
There was no unequivocal evidence of a written agreement as one would expect for undertaking of this magnitude.

[00:03:11] Speaker 03:
To begin with, and I'll get to the agreement shortly, the budget document shortly, but Mr. Kirk's October 4th email, which he purported to memorialize their conversation, did not refer at all to an agreement, and in fact used the language that Mr. Kirk said he used when no agreement had been reached, the language being- Wait a second.

[00:03:30] Speaker 02:
That said, Ms.

[00:03:31] Speaker 02:
Mu, this will confirm our recent conversation.

[00:03:34] Speaker 02:
Yes.

[00:03:34] Speaker 02:
We will agree to pay a rate not exceed-

[00:03:37] Speaker 03:
But he didn't say, we have agreed in our call.

[00:03:40] Speaker 03:
You agreed that this is what he never said that.

[00:03:43] Speaker 03:
And what the next language he uses is any amount in excess will be the insured's responsibility.

[00:03:51] Speaker 03:
And he testified clearly that that was the language that he said he used.

[00:03:56] Speaker 03:
when no agreement had been reached.

[00:03:58] Speaker 03:
And the reason he used that is that what he was trying to do was negotiate a retention agreement with Fulbright to be FFIC's chosen counsel.

[00:04:09] Speaker 03:
If he was successful in negotiating that retention agreement, there would be no excess for the client to pay because Fulbright would have executed an agreement with FFIC to be their counsel and would be bound by the terms of that agreement.

[00:04:23] Speaker 03:
to get to the budget document so the district court alternatively held that the budget document which was sent more than three weeks later after that email was the acceptance of a contractual offer

[00:04:36] Speaker 03:
But not, I think it's important, FFIC didn't even make that argument on summary judgment.

[00:04:42] Speaker 03:
And I think with good reason, the budget document on its face.

[00:04:45] Speaker 04:
Right before we get to the budget document, the email attaches litigation and billing guidelines.

[00:04:51] Speaker 04:
Yes.

[00:04:52] Speaker 04:
And the email says, please note that an initial evaluation report is requested.

[00:04:57] Speaker 04:
Yes.

[00:04:58] Speaker 04:
And the second document you're about to discuss, is that initial evaluation report?

[00:05:02] Speaker 03:
I think that the evaluation report was sent at the same time.

[00:05:05] Speaker 03:
It's a different document, though.

[00:05:07] Speaker 03:
She was trying to be helpful to Mr. Kirk.

[00:05:11] Speaker 03:
But as we know, I believe the evaluation was a separate document that was submitted at the same time.

[00:05:18] Speaker 04:
Well, if I can explain my uncertainty here.

[00:05:21] Speaker 04:
Yeah, sure.

[00:05:22] Speaker 04:
So attached are the litigation and billing guidelines.

[00:05:26] Speaker 04:
And it says on page JA 523, preliminary evaluation plan and cost estimate.

[00:05:35] Speaker 04:
Within 45 days, you have to submit an itemized budget for the proposed defense.

[00:05:41] Speaker 04:
At the bottom of the page, it says the budget setting out a proposed completion rate and the number of hours and the applicable billing rate.

[00:05:49] Speaker 04:
And then on J527, it says Fireman's Fund and Defense Council must agree on the appropriate hourly rate.

[00:06:01] Speaker 04:
Yes.

[00:06:03] Speaker 04:
So just to take the argument against you for just one moment, that this letter says we want from you the agreed upon rate.

[00:06:13] Speaker 04:
This is what we say the agreed upon rate should be.

[00:06:16] Speaker 04:
And we want it within 45 days response.

[00:06:22] Speaker 04:
Then on J534 is a response.

[00:06:29] Speaker 04:
which includes a budget, which includes the budget, the numbers, the hourly rates that they proposed in the first, in the opening.

[00:06:39] Speaker 04:
And I think if that's, just to put the best light on what the judge is saying, that would be it.

[00:06:44] Speaker 04:
Is that right?

[00:06:45] Speaker 03:
I don't think the judge relied on the request for a status, because I, and I don't think it is in the appendix, it might be, but I think that was a separate document.

[00:06:55] Speaker 03:
The budget was separate from the other

[00:06:57] Speaker 04:
That's the budget.

[00:07:02] Speaker 03:
Yes, I believe there was a separate and what I'm saying is I think there was a separate communication from mr. Mewton to mr. Kirk on that date that was The one I'm looking at says a request and closer with is a proposed budget budget.

[00:07:16] Speaker 03:
Yes It was an awful request for something else, which was this evaluation evaluation.

[00:07:22] Speaker 04:
No, I understand that but the opening

[00:07:25] Speaker 04:
If you take the October 4th document as the opener, it asks for an attachment.

[00:07:32] Speaker 04:
It asks for a budget, itemized budget.

[00:07:35] Speaker 04:
And this is the itemized budget.

[00:07:36] Speaker 04:
There's not another itemized budget.

[00:07:37] Speaker 04:
That is correct.

[00:07:38] Speaker 04:
That is correct.

[00:07:38] Speaker 03:
And I think that important thing to note, first of all, is that that cover letter, this is on 534, says it's non-binding.

[00:07:45] Speaker 03:
And what we need here is an acceptance.

[00:07:47] Speaker 02:
Wait a second.

[00:07:48] Speaker 02:
It doesn't just say it's not a binding representation of the fees and expenses that actually will be incurred in the matter.

[00:07:56] Speaker 02:
We ultimately will be guided by our professional judgment to use the time and resources necessary.

[00:08:01] Speaker 02:
It doesn't touch rates at all.

[00:08:04] Speaker 02:
At the very least, this is a

[00:08:08] Speaker 02:
very poorly worded letter.

[00:08:12] Speaker 02:
If your goal is to say, we don't have an agreement as to rates, it doesn't say that expressly here.

[00:08:19] Speaker 03:
We are on summary judgment, Your Honor, and on page 798 of the appendix, Ms.

[00:08:23] Speaker 03:
Mu expressly testified that she understood what she was saying was including rates and fees in there.

[00:08:31] Speaker 03:
So, again, the question is, can this be resolved on summary judgment?

[00:08:35] Speaker 03:
And the 1836 S Street case says quite clearly that

[00:08:39] Speaker 03:
where the documents that are alleged to constitute the agreement are themselves susceptible to multiple interpretations.

[00:08:47] Speaker 02:
Where's the word rates appear in here?

[00:08:49] Speaker 02:
How is this susceptible to another interpretation?

[00:08:52] Speaker 02:
She attaches a budget that's based on the rates, and she says now, you know, this is not binding regarding fees and expenses that actually will be incurred because we get to reserve how much time we're going to spend on this.

[00:09:07] Speaker 03:
What's subject to dispute your honor is whether or not there was an intent to be bound on all the material terms of an attorney retention agreement.

[00:09:16] Speaker 02:
Why then is this budget based on the rates?

[00:09:21] Speaker 02:
I don't understand that.

[00:09:22] Speaker 03:
I think there's a clear good reason the jury could determine this and that is

[00:09:26] Speaker 03:
Mr. Kirk had said, this is the most FSIC is willing to pay.

[00:09:30] Speaker 03:
How much is it going to cost us?

[00:09:32] Speaker 03:
And she says, well, you've said the most you're willing to pay.

[00:09:35] Speaker 03:
Here's what it's going to cost you at that rate, if your rates are used.

[00:09:38] Speaker 03:
I think it's entirely reasonable to be helpful to Mr. Kirk in deciding what it might cost him at what he has said is the most that he's willing to pay.

[00:09:47] Speaker 03:
It does not mean that

[00:09:49] Speaker 03:
that Fulbright agreed, and there's no statement here of any offer, there's no statement of any acceptance, and there's no statement here of any binding intent.

[00:10:00] Speaker 03:
So I think it's clear that's why, at least in my view, why FFC never raised this on summary judgment.

[00:10:05] Speaker 03:
What they said on summary judgment is that this budget document somehow confirmed the earlier oral agreement.

[00:10:12] Speaker 03:
She used the rates.

[00:10:13] Speaker 03:
We must have had an agreement.

[00:10:15] Speaker 03:
I don't think you can look at this document.

[00:10:17] Speaker 03:
We think, frankly, it can't even reasonably be interpreted as an acceptance of a contractual offer.

[00:10:23] Speaker 03:
And if I might also add, again, what Mr. Kirk was trying to do here was to negotiate.

[00:10:29] Speaker 03:
I see I'm close to my rebuttal time.

[00:10:31] Speaker 03:
If I can keep going, I'd appreciate it.

[00:10:33] Speaker 03:
What Mr. Kirk was trying to do here was to negotiate a retention agreement with his chosen counsel, what would be his chosen counsel.

[00:10:44] Speaker 03:
And that agreement, even if you were to look just at this as, just except for the purposes of argument, that this is an agreement on rates.

[00:10:52] Speaker 03:
There were numerous, and it's not, there were numerous other terms that were left unresolved.

[00:10:59] Speaker 04:
I noticed that argument in the briefs, but district court doesn't appear to address it.

[00:11:03] Speaker 04:
Did you raise below the argument that there are a lot of other material terms?

[00:11:07] Speaker 03:
Absolutely, Your Honor, yes.

[00:11:08] Speaker 04:
Could you cite that for me?

[00:11:11] Speaker 04:
When you come back on rebuttal.

[00:11:13] Speaker 04:
If you could tell me where in the docket.

[00:11:15] Speaker 04:
Not now.

[00:11:16] Speaker 03:
Yes.

[00:11:16] Speaker 03:
Okay.

[00:11:17] Speaker 03:
Yes.

[00:11:18] Speaker 03:
And that's also under the DC law question.

[00:11:21] Speaker 03:
In fact, it's a what is a material term.

[00:11:24] Speaker 03:
And so what we have here is a exchange of correspondence after the budget document in which

[00:11:28] Speaker 03:
FFIC disputes virtually everything that's in the budget document says, for example, we're going to need prior approval for any hours more than four hours in the case.

[00:11:38] Speaker 03:
We're going to need prior approval.

[00:11:40] Speaker 02:
And those are objected to in the December 8th letter, but nothing said about rates.

[00:11:45] Speaker 03:
Well, the December, I'm just saying now, I'm moving on to an argument that even if you want to assume, and we don't agree that there was an agreement on rates, and there wasn't.

[00:11:53] Speaker 03:
And in fact, our Fulbright's.

[00:11:55] Speaker 02:
But December 8th, you make these objections to the proposed budget and nothing is said about rates.

[00:12:00] Speaker 03:
It's not true that nothing was said.

[00:12:02] Speaker 03:
What the Fulbright said at that time was, Mr. Feld is, FFIC is currently, using the word currently paying,

[00:12:11] Speaker 03:
only half of the rates, notwithstanding the insurance that he has purchased, Mr. Feld has purchased from FFIC, and that was in the joiner letter.

[00:12:22] Speaker 03:
What that jury could conclude there, and what her understanding, I think, clearly was, was we're

[00:12:28] Speaker 03:
That's the current payment, but he has insurance that he's bought.

[00:12:33] Speaker 03:
We already have a contract for insurance, and we will deal with that, and we did deal with that later.

[00:12:37] Speaker 03:
We filed the lawsuit here.

[00:12:39] Speaker 03:
But it's not an agreement.

[00:12:41] Speaker 03:
The question is here for the district court and for this court is, where's the agreement?

[00:12:45] Speaker 03:
Where's the intent to be bound as to all material terms?

[00:12:49] Speaker 03:
And we submit you cannot reasonably, much less unambiguously, look at the budget document as constituting that intent.

[00:12:58] Speaker 03:
Any further questions?

[00:13:00] Speaker 03:
Thank you, Your Honor.

[00:13:12] Speaker 01:
Thank you.

[00:13:13] Speaker 01:
May it please the Court, Tom Schaufelberger on behalf of Fireman's Fund Insurance Company.

[00:13:19] Speaker 01:
What I'd like to do is first turn to the budget issue, which took up a lot of the discussion earlier.

[00:13:26] Speaker 01:
Basically, the context is very important here.

[00:13:31] Speaker 01:
The budget didn't come out of blue.

[00:13:34] Speaker 01:
The budget came after a couple of conversations which were memorialized by Mr. Kirk.

[00:13:40] Speaker 01:
And then Carolyn Mew sent the budget.

[00:13:44] Speaker 01:
She was described by Mr. Franklin as a junior associate, but she didn't send it on her own volition.

[00:13:53] Speaker 01:
This budget was sent after five other individuals at Fulbright looked at it and after it was sent.

[00:14:00] Speaker 01:
to Mr. Feld twice, and that's evident from the privilege document that is in the record showing that.

[00:14:08] Speaker 01:
This was a document, and also, what is the purpose of a budget?

[00:14:13] Speaker 01:
The purpose of a budget is to let a party know how much money it is anticipated will be spent on an undertaking.

[00:14:21] Speaker 01:
This undertaking was events of a single plaintiff, Mr. Feld's sister, personal injury action,

[00:14:30] Speaker 01:
And the budget was designed to indicate, to give fireman's fund, I think it's pretty obvious to anybody dealing with a budget, an idea of how much would in fact be spent.

[00:14:40] Speaker 01:
Not how much would be spent on some hypothetical, but how much would be spent on the actual fees and costs that would be charged in this case.

[00:14:50] Speaker 01:
In that context, it's crystal clear that this was an acceptance.

[00:14:55] Speaker 01:
And as your honor noted, there was nothing in this cover letter, despite much noise made, to suggest for a second that hourly rates were not as agreed.

[00:15:06] Speaker 01:
And indeed, that never shows up until two years later, after the underlying trial is done,

[00:15:15] Speaker 01:
And apparently at that time we had buyer's remorse kick in and there was an attempt to dispute the rates charged for the first time.

[00:15:27] Speaker 01:
And that is the discrete agreement we're dealing with, an hourly rate agreement.

[00:15:32] Speaker 01:
How much Fulbright's attorneys would charge for their hours of time.

[00:15:36] Speaker 01:
It wasn't about how many hours.

[00:15:39] Speaker 01:
It wasn't about cost per se.

[00:15:41] Speaker 01:
It wasn't about any other aspect of it.

[00:15:43] Speaker 01:
The agreement we're talking about is the hourly rate agreement.

[00:15:48] Speaker 01:
Other aspects of this case that might have involved other aspects of the billing guidelines are not before the court.

[00:15:57] Speaker 01:
They were resolved very early on in this context.

[00:16:01] Speaker 01:
Well, they were resolved in the underlying action before this appeal and before we had a final order in that case.

[00:16:10] Speaker 00:
best evidence of an offer of the contractual rates?

[00:16:17] Speaker 01:
The best evidence of the offer of the contractual rates, and we'll take it one of two ways, but the best evidence, I'll answer it if I can, just the way Judge Bates did.

[00:16:28] Speaker 01:
I think Judge Bates said that the budget was at the latest when the agreement was reached because that was the time at which Fulbright and Feld, through Ms.

[00:16:45] Speaker 01:
Mu, had indeed accepted Charles Kurtz's offer.

[00:16:51] Speaker 00:
The question is, what's your best evidence of an offer that was being accepted?

[00:16:57] Speaker 00:
When was this, in your view, reported offer advanced in clear terms so that the accepting party

[00:17:06] Speaker 00:
knew exactly what he or she was responding to?

[00:17:12] Speaker 01:
The best evidence is the budget being sent back.

[00:17:15] Speaker 01:
That is, the offer is the email that Mr. Kirk sends to Ms.

[00:17:22] Speaker 01:
Mu indicating what rates they discussed and what rates Fireman's Fund would pay.

[00:17:28] Speaker 01:
And that the overage would be the... Just to be clear, that's JA 521.

[00:17:35] Speaker 04:
You're saying that's the offer.

[00:17:36] Speaker 04:
Thank you, Your Honor.

[00:17:37] Speaker 04:
I'm just asking.

[00:17:38] Speaker 04:
Is that right?

[00:17:38] Speaker 04:
There's a question mark at the end of my sentence.

[00:17:41] Speaker 04:
Let me pull this out.

[00:17:42] Speaker 04:
That's the October 4th email.

[00:17:43] Speaker 04:
Is that what you're talking about?

[00:17:56] Speaker 01:
Yes, that's the offer, Your Honor, frankly, in the light most favorable to Fulbright, in this case, and Feld.

[00:18:09] Speaker 01:
There is an argument, and I think a correct argument also, that that is a document memorializing the agreement that Ms.

[00:18:18] Speaker 01:
Mu had with Mr. Kirk about what the rates would be.

[00:18:21] Speaker 00:
Well, I mean, these are really inconsistent theories.

[00:18:24] Speaker 00:
In my own view, that just hurts your case more because it shows the ambiguities.

[00:18:29] Speaker 00:
You've now flipped back to the original conversation, I guess that's what I heard you say, the original conversation, which certainly doesn't look like an agreement to me.

[00:18:39] Speaker 00:
So I'm not sure.

[00:18:40] Speaker 00:
That's why the first thing I'm trying to figure out is where do you think there's an offer?

[00:18:44] Speaker 00:
It doesn't look like anything I learned in law school.

[00:18:48] Speaker 00:
So I don't get, before you have an acceptance, you can't have an acceptance in the blue.

[00:18:54] Speaker 00:
It's got to be to an offer, and I'm struggling to find what I understood to be a valid contractual offer.

[00:19:01] Speaker 00:
Here it is.

[00:19:02] Speaker 00:
Here are the terms of the deal, A, B, C, and D, all of them, and this is it.

[00:19:09] Speaker 00:
You accept it or not?

[00:19:10] Speaker 00:
Where is that?

[00:19:11] Speaker 00:
You think it's the JA 521?

[00:19:14] Speaker 01:
I think it occurred during the conversation earlier, which is memorialized in JA 521, was the offer.

[00:19:21] Speaker 00:
So if there's a problem about the prior conversations, then your whole argument fails, right?

[00:19:26] Speaker 00:
If I think that prior conversation just doesn't give you the foundation you want, then you really don't have the offer yet.

[00:19:34] Speaker 00:
You are saying what I thought you were saying.

[00:19:36] Speaker 00:
You're resting on what I think is very soft ground.

[00:19:39] Speaker 00:
You're saying the prior conversation is critical to your position.

[00:19:42] Speaker 00:
The prior conversation doesn't look like it proves anything to me.

[00:19:45] Speaker 01:
No, Your Honor.

[00:19:46] Speaker 01:
I'm suggesting alternative grounds, each of which allows us to prevail.

[00:19:50] Speaker 00:
That's not what you just said.

[00:19:52] Speaker 01:
Well, I wish to correct it, Your Honor.

[00:19:54] Speaker 00:
I apologize if I misspoke.

[00:19:55] Speaker 00:
Why don't you tell me again what your theory is, what your answer is to my question, which was five minutes ago, what's the offer to which you think you are pointing

[00:20:07] Speaker 00:
which confirms the contractual arrangement because, and I'm not, I don't mean to be glib, we all went to law school and we knew what offers and acceptance were.

[00:20:17] Speaker 00:
This isn't even close to the paradigm.

[00:20:19] Speaker 00:
That doesn't mean the paradigm's the only way, but it's not close, so I'm not getting what you're talking about.

[00:20:26] Speaker 01:
Understand your point your honor.

[00:20:28] Speaker 01:
I think for purposes of this argument ja 521 is the offer and The budget coming back is the acceptance Thank you Let me also

[00:20:55] Speaker 01:
I think we've gone through the context pretty thoroughly in the briefing, and I'll spare the court going through that again.

[00:21:03] Speaker 01:
And unless your honors have any additional questions, I'll end my argument at that point.

[00:21:11] Speaker 01:
Hearing none.

[00:21:12] Speaker 01:
Thank you, Your Honor.

[00:21:19] Speaker 04:
Does Mr. Feltz consult any time?

[00:21:24] Speaker 04:
Okay, you want to come up, maybe you can answer that other question that I asked you.

[00:21:32] Speaker 04:
This was a question of whether the more general argument about other issues that were required for an agreement had not.

[00:21:42] Speaker 03:
Thank you, Your Honor.

[00:21:51] Speaker 03:
First of all, I'm a little hamstrung here in the sense that the other side, I don't believe, has raised any argument as to are not having preserved an issue.

[00:21:59] Speaker 03:
I'm just asking.

[00:22:02] Speaker 03:
I know.

[00:22:02] Speaker 03:
I understand.

[00:22:03] Speaker 03:
I'm also hamstrung a little bit, but all the memorandum are not in the Joint Appendix in their entirety.

[00:22:08] Speaker 03:
But I do have the page right now is page 657 of the Joint Appendix where

[00:22:16] Speaker 03:
We were in our summary judgment motion and we phrased it in terms of the offer.

[00:22:20] Speaker 03:
We said even if FFIC has made an offer, the material terms of any such offer were never stated.

[00:22:26] Speaker 03:
And I think that goes to the point here that there was not a meeting of the minds of all the material terms of the proposed arrangement and that does go

[00:22:38] Speaker 03:
somewhat to Judge Edwards' questioning about an offer, there was not an understanding on the part of Fulbright that this was an offer.

[00:22:44] Speaker 03:
This was simply what FFIC stated was the most it would be willing to pay.

[00:22:50] Speaker 03:
Mr. Kirk used the language that he used when there was no agreement, and that is that the excess will be the client's responsibility.

[00:22:58] Speaker 03:
The parties simply had not agreed on anything at that time.

[00:23:01] Speaker 03:
And then, of course, we have the subsequent correspondence that even the district court said was a mixed bag.

[00:23:07] Speaker 03:
I think if you look at all of the cases that we've cited, Strauss, Kramer case, the other cases, most of which were bench trials, by the way,

[00:23:15] Speaker 03:
There just simply isn't a way for the court to say this is an undisputed issue of fact.

[00:23:22] Speaker 03:
There were too many things that were left up in the air.

[00:23:25] Speaker 03:
We think, frankly, the most reasonable interpretation is that there was simply no agreement.

[00:23:29] Speaker 03:
The rates were left with FFIC paying what it agreed, what it thought was going to be the most that it would pay.

[00:23:37] Speaker 02:
So if we agreed with you, what happens to this case?

[00:23:39] Speaker 02:
What's the next step?

[00:23:40] Speaker 03:
The next step, I think, would be a trial on the remaining issues.

[00:23:46] Speaker 03:
If the court agrees with us on this agreement issue, then the trial would involve, among other things... What would the issue be there?

[00:23:54] Speaker 02:
What are reasonable costs?

[00:23:56] Speaker 03:
Well, it would be, first of all, I think, unless we were able to subsequently... Well, first there would be a trial on whether there was a contract.

[00:24:04] Speaker 03:
Yes.

[00:24:05] Speaker 03:
Then, if you won that, you would then get... Yes, I think that ultimately, no matter how the court resolves it, unfortunately... But wouldn't that trial be over the meaning of a reasonable cost?

[00:24:15] Speaker 03:
Reasonable rates, reasonable fees, reasonable rates.

[00:24:19] Speaker 03:
Yes, it would involve that as well.

[00:24:20] Speaker 03:
And that I think is, unfortunately, I'd love to say we can get out of this entirely, but I think that in any event, that was a reserved issue no matter what.

[00:24:29] Speaker 03:
So if the court says that, as I think we should, that the question of an agreement is up in the air,

[00:24:35] Speaker 03:
then the also the next question would be what's if the jury finds no agreement which we think they shouldn't what are the reasonable and we think we would prevail on that because our rates the filbert's rates were reasonable for the market in this area we don't have any of that

[00:24:50] Speaker 03:
We don't have that.

[00:24:51] Speaker 03:
That's not an issue for this Court.

[00:24:52] Speaker 03:
And then I think that on the consideration point also, that it would still require a determination of the reasonableness of the rates.

[00:24:58] Speaker 03:
And we're fully prepared to litigate that issue and win it.