[00:00:00] Speaker 01:
The final case for argument this morning is 15-5117, Meyer Group v. United States.

[00:00:35] Speaker 03:
May it please the court.

[00:00:38] Speaker 03:
The trial court made one broad error.

[00:00:40] Speaker 03:
Rather than analyze the circumstances of the case to determine a reasonable temporal limit for this extension clause, it instead analyzes the circumstances of the transaction, in this case, the Seventh Amendment.

[00:00:53] Speaker 03:
The trial court correctly held that the extension clause is indefinite and subject to a reasonable temporal limit as a matter of law.

[00:01:00] Speaker 03:
And that's under general principles of government contract law.

[00:01:03] Speaker 03:
In the absence of a specified time period for performance, performance must be rendered within a reasonable time.

[00:01:09] Speaker 03:
Meyer's arguments at 13 to 15 of their brief that the trial court should not have applied a reasonable time limitation lack merit.

[00:01:17] Speaker 03:
PRC's decision deadline is, in effect, an argument that trying to read into the brokerage agreement a nonexistent decision deadline from a lease that was signed 11 months after the party signed the brokerage agreement.

[00:01:31] Speaker 03:
Even if such a limitation were legally proper, the deadline was actually a dead letter, as shown by the landlord extending it by 19 months.

[00:01:40] Speaker 03:
Myers' attempt to add a negotiation requirement with testimony runs afoul of the plain language of the requirements of the contract.

[00:01:47] Speaker 01:
What's the plain language in the clause that is issued here?

[00:01:51] Speaker 01:
Yes, Your Honor.

[00:01:54] Speaker 03:
The plain language of the clause

[00:02:02] Speaker 03:
The extension clause, Your Honor, reads, subsequent to the expiration or termination of this agreement, we will continue to recognize the Meyer Group Limited as our exclusive broker and the procuring clause in accordance with the provisions hereof with respect to any prospective locations that have been submitted by the Meyer Group Limited during the term of this agreement.

[00:02:25] Speaker 01:
That's the clause at issue.

[00:02:26] Speaker 01:
What's limiting about that?

[00:02:29] Speaker 01:
I mean, what time frame?

[00:02:31] Speaker 01:
Your view is reasonable time frame is not sufficient or that the district court erred in saying that this was a reasonable time frame?

[00:02:38] Speaker 03:
The district court erred in, well the district court performed the wrong inquiry.

[00:02:43] Speaker 03:
What they did was they looked at the specific transaction and said was this transaction performed within a reasonable time.

[00:02:49] Speaker 03:
They didn't look and decide what is the reasonable temporal limit that should apply to this clause.

[00:02:54] Speaker 01:
Well what does this clause tell you about what the reasonable limit should be?

[00:02:58] Speaker 03:
Well, what the clause tells us, Your Honor, within its placement within the contract is that this is a extension clause within a brokerage agreement.

[00:03:09] Speaker 03:
And there's all sorts of additional, you know, when this type of situation is- Well, it doesn't have any time frame, right?

[00:03:18] Speaker 03:
Yes, Your Honor, that's correct.

[00:03:19] Speaker 01:
But it does have a criteria.

[00:03:21] Speaker 01:
And the criteria is we will continue to recognize the Meyer Group as our exclusive broker and the procuring cause

[00:03:28] Speaker 01:
in accordance with the provisions hereof with respect to any prospective locations that have been submitted by the Meyer Group during the term of this agreement.

[00:03:36] Speaker 01:
That suggests, does it not, that it's any prospective locations that were submitted during the term of this agreement.

[00:03:44] Speaker 03:
Right, Your Honor, and that's not under dispute.

[00:03:46] Speaker 03:
What's under dispute is the fact that

[00:03:48] Speaker 03:
What this clause allows, let me give a hypothetical, what this clause allows is the Meyer Group submitted 29 locations during the term of the agreement.

[00:03:59] Speaker 03:
And Meyer, now and forevermore, should PRC go to any of those locations, can make a claim.

[00:04:07] Speaker 00:
On based on hat based upon having submitted true with respect to some of the other properties that Meyer included in the list But with respect to these properties, it's clear that these were were procured by Meyer during the term of the agreement So you're asking us to speculate I think as to other properties and this thing may go on into perpetuity But but here we're dealing with two properties and these were Suggested to the government during the term of the agreement

[00:04:36] Speaker 03:
we are i guess just just to be clear we're we're dealing with one property in that there's different spaces within uh... nine oh one new york and two transactions yes sir uh... but i guess the the the premise of your question is that there it must be cut off uh... that nine oh one new york avenue was cut off uh... and that all the rest of the buildings must be cut off but where is the car i mean unless you read in the recent what i'm suggesting that if you have a problem

[00:05:04] Speaker 00:
If you have a case involving one of the other properties, and let's say it comes to us 50 years from now, then we could probably look at this and go, this agreement runs into perpetuity.

[00:05:18] Speaker 00:
But that's not the situation here.

[00:05:20] Speaker 00:
I mean, you're dealing with two transactions.

[00:05:23] Speaker 00:
Both of them were notified shortly after the termination of the agreement.

[00:05:27] Speaker 00:
They both involve one single property that

[00:05:30] Speaker 00:
that was procured by Meyer during the term of the agreement.

[00:05:35] Speaker 00:
I don't understand the basis of your complaint that there's an unreasonable time period here that's been breached.

[00:05:43] Speaker 03:
Yes, sir.

[00:05:44] Speaker 03:
And let me try.

[00:05:47] Speaker 03:
The reason it's unreasonable is because the time period that has been granted is 655 days.

[00:05:53] Speaker 03:
And the analysis that should have taken place is this is an extension clause.

[00:05:57] Speaker 03:
What types of time periods are typically applied to these types of clauses in the brokerage industry, and what are those?

[00:06:06] Speaker 03:
That's what this court's case law says.

[00:06:08] Speaker 03:
When the federal common law doesn't resolve this issue, you're to look in the best of decision and discussion on this topic.

[00:06:15] Speaker 03:
And the court did not do that.

[00:06:16] Speaker 03:
What the court did is it went straight to the issue of, is this a reasonable amount of time?

[00:06:20] Speaker 03:
Now, we disagree with lots about how the transaction was analyzed, et cetera.

[00:06:26] Speaker 03:
But getting to your fundamental point of,

[00:06:28] Speaker 03:
Why is that a problem?

[00:06:29] Speaker 03:
And the answer is because it gets rid of everything else.

[00:06:32] Speaker 03:
It gets rid of the DC code.

[00:06:33] Speaker 03:
It gets rid of all the case law that we cited.

[00:06:36] Speaker 03:
It also gets rid of the expert testimony.

[00:06:38] Speaker 03:
All of that needs to be considered in advance of applying whatever limit ultimately was chosen.

[00:06:45] Speaker 01:
Do any of those references that you just referred to provide a hard and fast rule for what a reasonable time frame is?

[00:06:50] Speaker 03:
Well, the D.C.

[00:06:51] Speaker 03:
Code applies a hard and fast rule, Your Honor, in this situation.

[00:06:54] Speaker 03:
It applies 90 days.

[00:06:55] Speaker 00:
All the parties agree that the D.C.

[00:06:57] Speaker 00:
Code doesn't apply here.

[00:06:59] Speaker 03:
Yes, Your Honor.

[00:07:00] Speaker 03:
We argued below that the D.C.

[00:07:02] Speaker 03:
Code applied directly.

[00:07:03] Speaker 03:
We're not raising that argument here.

[00:07:04] Speaker 03:
Here, we're simply raising it as an indication of the types of limitations that these agreements are typically subject to.

[00:07:10] Speaker 03:
90 days is one.

[00:07:11] Speaker 03:
We cited volumes of case law that show somewhere in the area of 6 to 12 months.

[00:07:15] Speaker 03:
Our expert testimony testified in 6 to 12 months.

[00:07:18] Speaker 03:
The whole point of our appeal here, Your Honor, is that all of that should have been considered.

[00:07:24] Speaker 03:
And I'm not saying that the court has to do all that in a vacuum.

[00:07:27] Speaker 03:
I understand that it has the transaction.

[00:07:29] Speaker 03:
And it can consider that transaction and the circumstances of that transaction.

[00:07:33] Speaker 03:
But it can't ignore the rest of it.

[00:07:35] Speaker 03:
And that is what happened here.

[00:07:36] Speaker 03:
It skipped straight to determining whether or not this specific transaction was done in a reasonable time.

[00:07:42] Speaker 03:
And it did so based on the specific

[00:07:45] Speaker 03:
things of this transaction.

[00:07:46] Speaker 03:
And that really boils down to not much of an inquiry.

[00:07:48] Speaker 02:
Because the court's... Is it possible to read the federal claims court decision as contemplating a two-year window?

[00:07:58] Speaker 02:
At J-829, she first starts off saying the plaintiff is arguing for a one- to two-year window, and the defendants are arguing for a six- to 12-month window.

[00:08:08] Speaker 02:
And then she points to, then on the next page, how your expert said that two pages

[00:08:14] Speaker 02:
under some circumstances could be a reasonable time period.

[00:08:18] Speaker 02:
And then she ultimately cuts off one of the brine cave leases because it was beyond two years.

[00:08:26] Speaker 02:
So I guess the point is maybe she was using a two-year window as the

[00:08:32] Speaker 02:
marker for what is a reasonable time.

[00:08:34] Speaker 03:
Right, and even if she were, Your Honor, I don't think that changes, I don't think that's what she did, but even if she were, even if the trial court was doing that, I don't think that's, I don't think that was, that wouldn't cure the issue here.

[00:08:47] Speaker 03:
Because even a two-year, Your Honor, case law, no two-year.

[00:08:50] Speaker 03:
Our expert testimony, six to twelve months.

[00:08:52] Speaker 03:
To clarify on our expert's testimony, our expert's testimony was

[00:08:56] Speaker 03:
Is there a situation where parties might agree to a two-year extension clause, where within this term, the term that we just read, the Meyer term, let's assume that parties could agree that we're going to cut this off after 24 months.

[00:09:11] Speaker 03:
properly testified that yes, that could happen.

[00:09:14] Speaker 01:
They also could have done six months or 12 months or 90 days.

[00:09:17] Speaker 01:
They didn't do that either.

[00:09:18] Speaker 01:
That's your position.

[00:09:20] Speaker 01:
What you want wasn't included in the contract either.

[00:09:22] Speaker 03:
I agree with that wholeheartedly, Your Honor.

[00:09:25] Speaker 03:
But the way that the law provides these things are to be resolved is that the court is to look to the best of decision and modern discussion on this topic.

[00:09:34] Speaker 03:
And Meyer cannot cite a case, cannot cite a case where there has been a recovery

[00:09:40] Speaker 03:
after this amount of time based upon an extension clause.

[00:09:44] Speaker 03:
And it's very important to note, I believe it's page 19 of their brief.

[00:09:47] Speaker 03:
They cite four cases.

[00:09:49] Speaker 03:
None of those cases is an extension clause case.

[00:09:51] Speaker 03:
Every single one of those cases is a recovery based upon a broker who put a tenant in a building and then there was an extension or renewal.

[00:10:01] Speaker 02:
And there is specific language.

[00:10:03] Speaker 02:
Are any of your cases relating to commercial real estate leasing for a really large tenant?

[00:10:09] Speaker 03:
No, Your Honor, we don't have any specific cases that sort of... Your cases seem to be more about property sales.

[00:10:17] Speaker 02:
That's the main thrust of them.

[00:10:19] Speaker 03:
Some of the cases, yes, Your Honor.

[00:10:20] Speaker 03:
And I think what that goes to, Your Honor, is there isn't a lot of case law out here on this.

[00:10:26] Speaker 03:
And I think the reason for that is because

[00:10:28] Speaker 03:
First of all, most extension clauses simply are not drafted like this.

[00:10:31] Speaker 02:
So then maybe it does come down to the experts.

[00:10:33] Speaker 02:
And then we have an expert on one side with 29 years of experience in the local area on commercial real estate leasing.

[00:10:40] Speaker 02:
And then we have another expert that acknowledged that he's actually not an expert when it comes to commercial real estate leasing.

[00:10:47] Speaker 03:
Well, Your Honor, the court found that he was an expert and qualified him as an expert.

[00:10:50] Speaker 02:
He qualified him, but didn't your expert say what I just said he said?

[00:10:54] Speaker 02:
about the... That he doesn't really regard himself as an expert with respect to commercial real estate leasing?

[00:10:59] Speaker 03:
Yes, Your Honor, but that's not what we brought him for an expert for.

[00:11:02] Speaker 03:
We brought him as an expert in these types of agreement, and he was qualified as an expert for that purpose.

[00:11:06] Speaker 02:
And his testimony was... Well, what kind of agreement is this, if it's not a, you know, commercial real estate leasing relationship?

[00:11:15] Speaker 02:
Well, this is... It's a brokerage agreement, Your Honor.

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

[00:11:16] Speaker 03:
I mean, a brokerage agreement is a brokerage agreement.

[00:11:18] Speaker 03:
I don't think that my expert's expertise is, you know, I mean, he's drafted

[00:11:24] Speaker 03:
numerous of these agreements.

[00:11:25] Speaker 00:
That being the case, we're looking to interpret this brokerage agreement.

[00:11:30] Speaker 00:
And irregardless of what the experts say, the agreement itself says that the extension clause stays in effect as long as subject to the expiration of termination.

[00:11:43] Speaker 00:
There are no time periods written in, 90 days or 120 days.

[00:11:48] Speaker 00:
Just as long as the brokerage agreement itself

[00:11:53] Speaker 00:
is in effect, then the extension clause remains in effect.

[00:12:01] Speaker 00:
I guess what I'm saying is that you negotiated, the government negotiated a contract here

[00:12:07] Speaker 00:
shouldn't you have to live by it?

[00:12:08] Speaker 00:
I mean, these are the terms of the agreement are pretty clear.

[00:12:12] Speaker 03:
Yes, your honor.

[00:12:13] Speaker 03:
I agree with you that it's clear, and it clearly omits a term, and that leads to a reasonable term.

[00:12:18] Speaker 03:
And I agree that the terms are bad.

[00:12:19] Speaker 00:
Why should we let the government change the terms of the contract at this point?

[00:12:23] Speaker 03:
Because the law demands that.

[00:12:24] Speaker 03:
Because there's case law out there that says without a reason.

[00:12:27] Speaker 03:
There's case law of Mellos, Messick.

[00:12:29] Speaker 03:
I cite numerous cases in my brief that where in this situation,

[00:12:33] Speaker 03:
It is subject to a reasonable term.

[00:12:34] Speaker 03:
A broker does not get an indefinite term.

[00:12:38] Speaker 03:
And make no mistake about it, Your Honor, that is what this is.

[00:12:41] Speaker 03:
It is indefinite.

[00:12:41] Speaker 03:
It can go on forever.

[00:12:42] Speaker 03:
Meyer tried to run away from that trial.

[00:12:45] Speaker 03:
They tried to add limitations.

[00:12:46] Speaker 03:
They tried to say they wouldn't make claims.

[00:12:47] Speaker 00:
Well, Meyer said they're not going to claim any other transactions under the agreement, correct?

[00:12:52] Speaker 03:
Yes, Your Honor, they said that.

[00:12:53] Speaker 00:
We're only limited to these two transactions.

[00:12:56] Speaker 00:
The argument, or the ghost, the specter of this perpetuity going on and Meier 100 years later can come back and claim some sort of compensation, that doesn't exist here.

[00:13:08] Speaker 03:
Well, Your Honor, it may not.

[00:13:10] Speaker 03:
The fact is, we don't know.

[00:13:11] Speaker 03:
We'll have to wait and see.

[00:13:13] Speaker 00:
Well, they already said they're not going to do it.

[00:13:16] Speaker 03:
Your Honor, I mean, I guess I can.

[00:13:21] Speaker 00:
A hundred years from now, if Meijer comes back and I happen to be sitting on this bench, which I very much doubt, I can guarantee you I'll say, Meijer, didn't you say already that you disallowed, you're not going to pursue these plans?

[00:13:32] Speaker 03:
And Your Honor, I appreciate that fully and I understand your point, but that doesn't go to the issue of contract interpretation.

[00:13:36] Speaker 01:
Can I just step back when you're talking about contract interpretation?

[00:13:39] Speaker 01:
What we've already established here just this morning is that the contract which you were party to doesn't provide a time limit.

[00:13:46] Speaker 01:
You're saying we all agree the DC code limit doesn't apply.

[00:13:49] Speaker 01:
We all agree that the case law doesn't give us much of anything definitively.

[00:13:54] Speaker 01:
And we're relying on the district courts, the court of federal claims choice between the testimony of two experts as to what she thinks is reasonable under these circumstances.

[00:14:03] Speaker 01:
What first is the standard of review you would suggest that we would apply to that determination?

[00:14:08] Speaker 03:
Your honor, I believe the standard review is, this is an error of law, and the reason it's an error of law is because the wrong inquiry was conducted.

[00:14:17] Speaker 03:
I also would like to some of the... Okay, tell me that.

[00:14:20] Speaker 03:
Tell me what the wrong inquiry, what, why hers was wrong and what... Because, your honor, what the trial court did is rather than go back to this clause and then look at

[00:14:30] Speaker 03:
the expert testimony, the DC code, and the case law.

[00:14:34] Speaker 03:
And I would also disagree with you that the case law is not definitive about the times, because if it was, then the Meyer Group could provide a 24-month or 18-month or whatever, and they can't, because it's not out there.

[00:14:45] Speaker 03:
But that is the inquiry that needed to have been made, and that was not the inquiry that was made.

[00:14:50] Speaker 03:
The inquiry that was made was, was this transaction done in a reasonable length of time?

[00:14:56] Speaker 01:
Based on all the facts... Let me just go back.

[00:14:58] Speaker 01:
The inquiry, let me understand what you're saying.

[00:15:00] Speaker 01:
The inquiry should have been that she should have looked at the DC code.

[00:15:05] Speaker 01:
That we've all agreed to.

[00:15:05] Speaker 03:
Should have considered the DC code as the best in modern decision and discussion with regards to how these types of agreements are limited when a term, when a temporal limit is omitted.

[00:15:18] Speaker 03:
Yes, your honor.

[00:15:19] Speaker 03:
She should have looked at that.

[00:15:20] Speaker 03:
The trial court should have looked at that.

[00:15:22] Speaker 03:
The trial court also should have looked at the case law to see what types of limitations do parties put into these agreements when there is a limitation in these agreements.

[00:15:32] Speaker 03:
And then finally, as was done, the expert testimony should have been considered.

[00:15:37] Speaker 03:
And more to that point,

[00:15:38] Speaker 01:
I see a moment.

[00:15:40] Speaker 03:
More to that point, Your Honor.

[00:15:42] Speaker 03:
There was no credence lended to their expert testimony.

[00:15:45] Speaker 03:
No credence lended to their expert testimony.

[00:15:47] Speaker 03:
It wasn't even discussed because it went along for about six or seven years.

[00:15:51] Speaker 03:
And the trial court did not find that credible.

[00:15:53] Speaker 03:
Thank you.

[00:15:53] Speaker 01:
Thank you.

[00:15:54] Speaker 01:
We'll restore two minutes of rebuttal.

[00:15:59] Speaker 04:
Michael Ross on behalf of the Meyer Group Limited.

[00:16:02] Speaker 04:
May it please the court, the plain language of the extension clause should be enforced as drafted.

[00:16:08] Speaker 04:
In its reply brief, and if I heard my friend and colleague correctly... Well, what does the planning language give you in terms of the contract?

[00:16:14] Speaker 04:
It has no time.

[00:16:15] Speaker 04:
So you're saying it's on limit?

[00:16:16] Speaker 01:
Yes, and... That's not what the district court found?

[00:16:19] Speaker 04:
Correct.

[00:16:19] Speaker 04:
We argued below that there was no need to engage in a reasonable period of time analysis because the contract language is unambiguous.

[00:16:28] Speaker 04:
We cannot resort under this court's precedence to extrinsic evidence, whereas here the contract language is unambiguous.

[00:16:35] Speaker 04:
In their reply brief,

[00:16:36] Speaker 04:
The government makes a subtle but significant acknowledgment.

[00:16:40] Speaker 04:
They write, and I quote, the court referring to Judge Williams held, and we do not challenge that Meyer's extension clause was unambiguous.

[00:16:49] Speaker 04:
If I heard Mr. Hoffman correctly here today, he also agreed that it's unambiguous.

[00:16:54] Speaker 04:
Under this court's numerous precedents, if contract language is unambiguous, there is no basis to resort to extrinsic evidence as the district court did here.

[00:17:05] Speaker 04:
So our view, Your Honor, is the fact that all parties agree.

[00:17:09] Speaker 01:
But there was a dust-up in the briefs about whether or not you can claim this as an alternative, rather than that you would have needed to file a cross-appeal.

[00:17:16] Speaker 04:
That is a specious argument.

[00:17:18] Speaker 04:
And we ask merely that Judge Williams' judgment in our favor be affirmed.

[00:17:24] Speaker 04:
I would have been in violation of this Court's rules if I had cross-appealed when I'm not seeking modification of the Court of Claim's judgment.

[00:17:34] Speaker 04:
this appeal, the very same legal argument I make alone.

[00:17:36] Speaker 01:
But if we make a legal judgment in this case that you are asking for us now, that means that the other decision, the other cases that she decided against you on, because she assumed the time frame exceeded a reasonable amount of time, would have to be revisited, would they not?

[00:17:52] Speaker 04:
It does not, Your Honor.

[00:17:54] Speaker 04:
Just to clarify, 98% of the damages we sought from the court of federal claims were related to the seven-year lease extension memorialized in the Seventh Amendment.

[00:18:04] Speaker 04:
The other three transactions were tiny compared to that very large transaction.

[00:18:10] Speaker 04:
So the commissions my client were entitled to on those three small spaces are comparatively trivial.

[00:18:15] Speaker 04:
After we got the Court of Federal Claims opinion, we analyzed, is it worth, from a cost benefit perspective, appealing our loss on those two small transactions?

[00:18:26] Speaker 04:
We decided it would cost more in attorney's fees to cross-appeal and file an extra brief.

[00:18:30] Speaker 04:
It was at stake.

[00:18:30] Speaker 04:
It's only about $5,000.

[00:18:31] Speaker 01:
Now, with regard to the clarity of the language, so what are you saying?

[00:18:35] Speaker 01:
That this could last in perpetuity?

[00:18:37] Speaker 01:
What are the parameters of what you think we ought to read into the clear language?

[00:18:42] Speaker 04:
Well, as a practical matter, it can't go on forever.

[00:18:44] Speaker 04:
They needed, they being the PRC, needed to resolve their office space situation by June 2012 at the very latest.

[00:18:52] Speaker 04:
Because then their landlord had a unilateral right to terminate their lease.

[00:18:57] Speaker 04:
And another tenant in the building, Goodwin Proctor,

[00:19:00] Speaker 01:
Well, that may be true of the circumstances in your case, but I don't know how many other contracts the government has with persons such as yourself that has this exact blanket.

[00:19:10] Speaker 01:
So you're asking us to construe this as going on forever.

[00:19:13] Speaker 01:
There might be circumstances that differ from yours.

[00:19:17] Speaker 04:
If I hear your honor's question correctly and understand it correctly, what I'm saying is somewhat different.

[00:19:20] Speaker 04:
In this particular case that's before this court, because all parties, including the government, agree that the extension clause is unambiguous.

[00:19:30] Speaker 04:
There's no legal ability or basis to resort to extrinsic evidence or engage in a reasonable period of time analysis.

[00:19:39] Speaker 04:
And if there's another case out there that presents a different factual scenario,

[00:19:43] Speaker 04:
You know, I'm not aware of one, but this is the only contract.

[00:19:46] Speaker 01:
So your reading that it's unambiguous is simply because if there was anything that they submitted while they were working there, that's one limitation, right?

[00:19:54] Speaker 01:
It's not a temporal limitation.

[00:19:55] Speaker 01:
Correct.

[00:19:56] Speaker 01:
There's no temporal limitation.

[00:19:57] Speaker 01:
And it has to have been included on the list.

[00:20:00] Speaker 01:
Correct.

[00:20:01] Speaker 01:
And short of that, there were no limitations.

[00:20:03] Speaker 01:
I mean, everything that was on the list.

[00:20:05] Speaker 04:
I think it's a practical matter.

[00:20:06] Speaker 04:
In the real world of commercial leasing, there is a very real limitation.

[00:20:09] Speaker 04:
That is, they've already solved that.

[00:20:11] Speaker 04:
lease challenge that my client was assisting with.

[00:20:14] Speaker 04:
That is, what are they going to do beginning June 2012 thereafter?

[00:20:17] Speaker 04:
They entered a seven-year lease extension in 901 New York.

[00:20:22] Speaker 04:
In 2022, or a year or two before, when they decide, should we stay here or should we explore other options in other commercial office buildings in DC, that's a new office space search, with respect to which my client will have absolutely no involvement and will not be in a position, because he's not their broker,

[00:20:39] Speaker 04:
to submit for their consideration any property for lease beginning in 2022.

[00:20:44] Speaker 04:
So as a practical matter, although they make a big deal about this in perpetuity issue, in the real world of commercial leasing, there's no possibility that this is going to go on at all because the situation has already been resolved.

[00:20:58] Speaker 01:
So you're suggesting that the parties didn't have to negotiate a time frame because the criteria that are included in here necessarily

[00:21:06] Speaker 01:
are a limited universe.

[00:21:07] Speaker 04:
Your honor just stated it much better than I did.

[00:21:09] Speaker 04:
Yes, that's exactly what we're saying.

[00:21:11] Speaker 02:
So what if a client is thinking about moving and then you submit various properties and they don't make any decision.

[00:21:24] Speaker 02:
They don't make any decision for 10 years.

[00:21:26] Speaker 02:
And then 10 years later, now the brokerage relationship's been terminated for 10 years.

[00:21:32] Speaker 02:
They decide, oh, we

[00:21:35] Speaker 02:
We should move, and let's move now.

[00:21:36] Speaker 02:
We're going to move to Alexandria.

[00:21:37] Speaker 02:
And it turns out that the Alexandria property was something that you had submitted to them 10 years earlier.

[00:21:44] Speaker 02:
Are you saying even though they long forgot about any contact they had with you or any relationship they had with you, that now they'll be on the hook if they later on, 10 years later, maybe through a different broker,

[00:22:00] Speaker 02:
land on that same Alexandria property?

[00:22:03] Speaker 04:
That would be an extremely unusual situation, but accepting the premise of the hypothetical?

[00:22:07] Speaker 04:
The answer would be yes.

[00:22:09] Speaker 04:
If that's what the parties, these are sophisticated parties, that's what they agreed to.

[00:22:13] Speaker 04:
In the real world, that would never happen.

[00:22:15] Speaker 04:
Nobody thinks, hey, I've got 10 years remaining on my lease.

[00:22:19] Speaker 00:
Maybe I should consider what I'm going to do 10 years out.

[00:22:22] Speaker 00:
In the initial transaction, let's say you were helping them with the lease.

[00:22:27] Speaker 00:
on that particular property, then later on, when they do move to that property, it's under a rental agreement.

[00:22:34] Speaker 00:
So this isn't something that Meyer would have helped them with, correct?

[00:22:40] Speaker 00:
I apologize.

[00:22:40] Speaker 04:
I'm not following your honor's question.

[00:22:43] Speaker 00:
OK.

[00:22:43] Speaker 00:
If you move into a property, let's say the Alexander property, and you are assisting with them today,

[00:22:50] Speaker 00:
on a lease agreement on that particular property.

[00:22:53] Speaker 00:
It falls apart.

[00:22:55] Speaker 00:
Ten years later, the government moves to that property and rents on a month-to-month basis.

[00:23:01] Speaker 00:
Are you saying that at that point Myers would still be eligible to be looked at as the procurement factor?

[00:23:12] Speaker 04:
So they do move into the new property.

[00:23:15] Speaker 00:
Right, but not under the terms you helped them with.

[00:23:19] Speaker 04:
As the extension clause is written, and the way these brokerage agreements work, where he, my client, is the exclusive broker, any rental of any property submitted by my client during the term of the agreement will be subject to his right to a commission.

[00:23:38] Speaker 04:
So I think the answer would be yes.

[00:23:47] Speaker 04:
So again,

[00:23:48] Speaker 04:
Parties apparently agree on appeal now.

[00:23:51] Speaker 04:
I'll acknowledge that below, the government quite emphatically argued that the extension clause was ambiguous.

[00:23:58] Speaker 04:
On appeal on page 12 of the reply brief, they acknowledge that it is unambiguous.

[00:24:04] Speaker 04:
We agree with that.

[00:24:05] Speaker 04:
And in light of that, we think there's absolutely no basis to resort to extrinsic evidence or engage in a reasonable period of time limitation.

[00:24:12] Speaker 01:
I'm just looking for page 12 gray where you say,

[00:24:16] Speaker 01:
All I see is the net result of ambiguity.

[00:24:20] Speaker 01:
Maybe I'm looking at the wrong thing.

[00:24:53] Speaker 04:
It's the second sentence in the first full paragraph on page 12 of the reply.

[00:25:00] Speaker 04:
I can read it if it would help.

[00:25:01] Speaker 04:
Why don't you read it?

[00:25:03] Speaker 04:
Quote, Meyers is correct that the term at issue in Consumer's Ice was held to be ambiguous and that the court held, and we do not challenge, the court is a reference to Judge Williams, quote, that Meyers extension clause was unambiguous.

[00:25:18] Speaker 04:
So they acknowledge, if I read this correctly, that we do not challenge

[00:25:21] Speaker 04:
that Meyer's extension clause was unambiguous.

[00:25:24] Speaker 04:
That's exactly our position, both in front of Judge Williams and in this court.

[00:25:29] Speaker 04:
I kind of read that as they were talking about some other ambiguity, other than whether or not... It's very subtle, but I also heard my friend today acknowledge that the extension clause is unambiguous.

[00:25:38] Speaker 04:
And in light of that, I think this court's precedents are quite clear.

[00:25:41] Speaker 04:
No extrinsic evidence

[00:25:43] Speaker 04:
is to be considered.

[00:25:44] Speaker 04:
The plain language of the contract controls and must be enforced.

[00:25:47] Speaker 01:
But if we reject that, then you would fall back on the argument.

[00:25:51] Speaker 04:
Correct.

[00:25:52] Speaker 04:
And to answer Your Honor's question earlier to Mr. Hoffman, I think it's quite clear that Judge Williams' determinations as to whether these two transactions at issue on appeal occurred within a reasonable period of time following termination.

[00:26:06] Speaker 04:
That would be reviewed for clear error.

[00:26:08] Speaker 04:
Those were factual findings.

[00:26:09] Speaker 04:
And she refers specifically to her finding

[00:26:11] Speaker 04:
that these transactions occurred within a reasonable period of time.

[00:26:15] Speaker 04:
There is ample record evidence to support those factual findings by Judge Williams.

[00:26:20] Speaker 04:
There's no basis at all to reverse for clear error.

[00:26:23] Speaker 04:
If the court would be helpful to the court, I'm happy to get into that evidence.

[00:26:26] Speaker 04:
But if there are no further questions, I'll yield the balance of my time.

[00:26:31] Speaker 04:
Thank you.

[00:26:37] Speaker 01:
You want to just clarify that one point about whether you think the contract is ambiguous or unambiguous?

[00:26:43] Speaker 03:
No, Your Honor.

[00:26:45] Speaker 03:
We said we argued that it was ambiguous below.

[00:26:47] Speaker 03:
That holding is not something we appeal.

[00:26:49] Speaker 03:
But we don't need ambiguity.

[00:26:50] Speaker 03:
All we need is indefiniteness.

[00:26:52] Speaker 03:
And the case law on that is legion.

[00:26:54] Speaker 03:
VET construction.

[00:26:55] Speaker 03:
Society on a name a Gustavino.

[00:26:58] Speaker 03:
We don't need ambiguity all we need is indefiniteness and the fact that this can go on forever So I disagree sort of with the premise that based upon a lack of ambiguity They win the other thing I would like to I think there may be some huge confusion about what submission covers Let's be very clear about what submission is for a property being has been submitted and the experts were agreement agreement on this below a Property can be submitted by driving by it and going that's a building it has space for lease that building is now submitted

[00:27:25] Speaker 03:
These are not submittals.

[00:27:26] Speaker 03:
These are not proposals.

[00:27:27] Speaker 03:
These are not lease terms.

[00:27:28] Speaker 03:
These aren't LOIs.

[00:27:30] Speaker 03:
This is the barest connection with the building.

[00:27:33] Speaker 03:
And that is the problem with this term, is that you have a minimal, minimal connection to that building, and then it goes on forever.

[00:27:40] Speaker 00:
Can you send a map and say, encircle downtown DC and say, these are all potential properties?

[00:27:48] Speaker 03:
Essentially, Your Honor, yes, they can.

[00:27:50] Speaker 03:
If you look at JA 1327,

[00:27:57] Speaker 03:
This is dated January 14, 2010.

[00:27:59] Speaker 03:
This is a market survey and financial analysis.

[00:28:02] Speaker 03:
This was sent by the Meyer Group.

[00:28:05] Speaker 03:
And there's another one of these that was sent back before.

[00:28:08] Speaker 01:
I guess what's disturbing me about this argument is that you're a party to these clauses.

[00:28:14] Speaker 01:
You're one side of this.

[00:28:16] Speaker 01:
If you're saying that, then that's probably problematic, even with respect to the six month or the one year cutoff that you're arguing for here.

[00:28:25] Speaker 01:
So it's a little odd to me that you're complaining about how broad this is.

[00:28:30] Speaker 01:
Well, no, Your Honor.

[00:28:31] Speaker 01:
The concerns you're raising with that would apply concerns of one year, just like two years, right?

[00:28:38] Speaker 03:
Well, no, Your Honor.

[00:28:39] Speaker 03:
I think that the breadth of the minimal of interaction that's necessary goes to how long a term you get.

[00:28:46] Speaker 03:
You don't get a two-year term, or in this case, forever, when all you have to do is submit a list of properties.

[00:28:54] Speaker 03:
And that's my point in distinguishing all the case law.

[00:28:56] Speaker 03:
And I'm not going to get into it here, but it is in my briefs.

[00:28:59] Speaker 03:
I distinguish all of their cases, because in general, those are cases with landlords, and those are for very finite periods of time.

[00:29:07] Speaker 01:
We have one final point.

[00:29:13] Speaker 03:
No, Your Honor, that's all I have.

[00:29:14] Speaker 01:
Thank you.

[00:29:15] Speaker 01:
We thank both sides.

[00:29:15] Speaker 01:
The case is submitted.

[00:29:17] Speaker 01:
That concludes our proceedings for this month.

[00:29:20] Speaker 02:
All rise.