                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-1825


TRADEMARK   PROPERTIES   INCORPORATED,  a   South       Carolina
Corporation; RICHARD C. DAVIS, an Individual,

                 Plaintiffs - Appellees,

           v.

A&E TELEVISION NETWORKS, a Joint Venture of the Hearst
Corporation; DEPARTURE FILMS, an Entity of Unknown Origin,

                 Defendants – Appellants,

           and

ABC, INCORPORATED; NBC UNIVERSAL; DOES 1-20, Inclusive,

                 Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:06-cv-02195-CWH)


Argued:   October 27, 2010                   Decided:   April 11, 2011


Before KING and DUNCAN, Circuit Judges, and Bobby R. BALDOCK,
Senior Circuit Judge of the United States Court of Appeals for
the Tenth Circuit, sitting by designation.


Affirmed by unpublished opinion. Senior Judge Baldock wrote the
majority opinion, in which Judge King joined.       Judge Duncan
wrote a separate opinion dissenting from the judgment.
ARGUED: Michael B. Mukasey, DEBEVOISE & PLIMPTON LLP, New York,
New York, for Appellants. William Walter Wilkins, NEXSEN PRUET,
Greenville, South Carolina, for Appellees.     ON BRIEF: Jeremy
Feigelson, S. Zev Parnass, DEBEVOISE & PLIMPTON LLP, New York,
New York; Richard Ashby Farrier, Jr., Robert H. Jordan, NELSON
MULLINS RILEY & SCARBOROUGH LLP, Charleston, South Carolina, for
Appellants.   Kirsten E. Small, NEXSEN PRUET, Greenville, South
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
BALDOCK, Senior Circuit Judge:

       Plaintiff         Richard       C.     Davis      approached      Defendant      A&E

Television Networks with the concept that he maintains became

the reality television series “Flip This House.” 1                         This dispute

arises out of the parties’ disagreement over an alleged oral

agreement to split equally net revenues of the show.                             Plaintiff

sued Defendant in state court for breach of that oral contract

in 2006, demanding approximately $7.5 million in damages, i.e.,

half       of   the    net     revenues      from   the     three     seasons    that   had

completed         filming      prior    to    trial. 2       Defendant     successfully

removed the case to federal court on the basis of diversity

jurisdiction.            After     five      days   of    trial     in   South    Carolina

federal         district     court,    a     jury   returned      a   verdict     awarding

Plaintiff        a    little    over   $4    million,       essentially    half    of   the

first season’s net revenues.                    The district court subsequently

denied Defendant’s motions for judgment as a matter of law and a

new trial pursuant to Fed. R. Civ. P. 50(b) and Fed. R. Civ. P.

59, respectively.              Defendant argues we should reverse and direct

judgment         in    its     favor    because       the     evidence     was    legally

       1
         Plaintiff   Davis  incorporated   Plaintiff   Trademark
Properties, Inc. as part of his real estate business.      While
both are Plaintiffs in this suit, for simplicity’s sake we refer
to Davis as Plaintiff.
       2
       The parties refer to “net profits” and “net revenues”
interchangeably. As a result, so do we.



                                               3
insufficient to support a finding of an oral contract under New

York law or, alternatively, order a new trial because of claimed

errors in jury instructions and evidentiary rulings. We exercise

our appellate jurisdiction provided by 28 U.S.C. § 1291.             After

careful review of the record submitted on appeal, we affirm the

district court’s denial of Defendant’s motions for judgment as a

matter of law and a new trial.



                                      I.

      We review the district court’s denial of Defendant’s Rule

50(b) motion for a judgment as a matter of law de novo.              Sloas

v. CSX Transp. Inc., 616 F.3d 380, 392 (4th Cir. 2010).                 In

conducting that review, we ask “‘whether there was a legally

sufficient evidentiary basis for a reasonable jury, viewing the

evidence in the light most favorable to the prevailing party, to

find for that party.     If reasonable minds could differ about the

verdict, we are obliged to affirm.’”         King v. McMillan, 594 F.3d

301, 312 (4th Cir. 2010) (quoting ABT Bldg. Prods. Corp. v.

Nat’l Union Fire Ins. Co., 472 F.3d 99, 113 (4th Cir. 2006))

(internal citations omitted); see also Fed. R. Civ. P. 50(a)(1)

(providing a court may grant a party judgment as a matter of law

if   “a   reasonable   jury   would   not   have   a   legally   sufficient

evidentiary basis to find for” the nonmoving party).             We review

the entire record, “disregard[ing] all evidence favorable to the

                                      4
moving party that the jury is not required to believe.”                                Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).



                                             II.

     Given      that     standard       of   review,       we   have    gleaned       and      so

present the following facts necessary to explain our holding.

Plaintiff       is   a   South     Carolina        real    estate      broker       who   buys

underpriced       properties       to    renovate         and   sell,    engaging         in    a

process we are told is commonly known as “flipping.”                                In 2003,

Plaintiff conceived of the idea of a television show to document

the flipping process and later developed a pilot episode of the

show.      In    2004,    Plaintiff          submitted      the   pilot        to   multiple

television       networks,       including        Defendant.           Defendant’s        vice

president directed him to deal with Charles Nordlander, director

of lifestyle programming for Defendant.

     After Nordlander viewed the pilot, the two spoke over the

phone for a little less than an hour on June 3, 2004 about

turning the show into a series.                   Essentially, Plaintiff proposed

that he would assume all of the financial risk relating to the

purchase    and      resale   of    the      real   estate      but     that    they      would

otherwise equally split the net revenues of the television show.

In response to Plaintiff’s offer, Plaintiff maintains Nordlander

said “Okay, okay, I get it.”                 Thus, Plaintiff argues that by the

end of this June 3 telephone conversation he and Defendant, via

                                              5
Nordlander,         had    entered     into    an     oral      contract      to    produce    a

television series based on Plaintiff’s pilot and to share all

resulting         net      revenues     equally,          subject     to       approval       by

Defendant’s board of directors.

       Plaintiff testified that Nordlander arranged a conference

call    shortly         thereafter     during      which     Plaintiff        confirmed     the

terms    of       the     contract    with     three       other    representatives           of

Defendant.          Nordlander also arranged a meeting in New York on

June    14       between    a     production       company,      Departure         Films,   and

Plaintiff.         With Departure Films on board, filming for the pilot

began in August 2004.                 In March 2005, Defendant’s Senior Vice

President         e-mailed      Plaintiff      that      “[t]he     board     approved      the

money for our series.”               Plaintiff and Departure Films then began

filming season one.

       The parties never reduced any oral agreement to writing.

Nonetheless, they filmed thirteen episodes of “Flip this House.”

By all accounts, the show was a commercial success.                                   But, as

must be the case since the parties came knocking on the Court’s

door,    their      business       relationship          fell    apart   in     2006.       The

parties          could      not      resolve       the       matter      of        Plaintiff’s

compensation.            Defendant offered to pay Plaintiff an appearance

fee per episode and a five percent share of incremental revenue

attributable to the show.                   Plaintiff rejected that offer and

signed       a    talent     agreement      with      another      television        network.

                                               6
Defendant went on to produce three more seasons of “Flip this

House” without Plaintiff’s participation.                       Defendant never paid

Plaintiff any money, let alone half of the series’ net revenue,

for his role in its production.                  At trial, Defendant denied ever

entering into any contract with Plaintiff.



                                            III.

       We start by setting forth the principles of contract law

relevant to Defendant’s claim that it is entitled to judgment as

a   matter        of   law.     “[B]ecause        the    matter     is    before     us    in

diversity,        we   are    bound    by   the    applicable       state    substantive

law.”       Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234

(4th       Cir.   1996).       And,    because      neither     party     contests        the

district court’s ruling that New York law controls, we apply the

laws of New York.

       Absent prohibition by the statute of frauds, oral contracts

are just as binding as written contracts under New York law. 3

Stein v. Gelfand, 476 F. Supp. 2d 427, 431 (S.D.N.Y. 2007).                                To

establish         Defendant    breached      their       oral   contract,      Plaintiff

must, of course, first prove that they formed such a contract.

Cleveland Wrecking Co. v. Hercules Constr. Corp., 23 F. Supp. 2d


       3
       Defendant does            not    raise      the    statute    of     frauds    as    a
defense on appeal.



                                             7
287, 292 (E.D.N.Y. 1998).              “‘To form a valid contract under New

York law, there must be an offer, acceptance, consideration,

mutual assent and intent to be bound.’”                      Register.com, Inc. v.

Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004) (quoting Louros v.

Cyr, 175 F. Supp. 2d 497, 512 n.5 (S.D.N.Y. 2001)).                       “‘[M]utual

assent is essential to the formation of a contract and a party

cannot be held to have contracted if there was no assent or

acceptance.’”         Id. (quoting Maffea v. Ippolito, 668 N.Y.S.2d

653, 654 (N.Y. App. Div. 1998)).                “There must, in other words,

be ‘an objective meeting of the minds sufficient to give rise to

a binding and enforceable contract.’”                 Int’l Bus. Mach. Corp. v.

Johnson,       629   F.   Supp.   2d    321,   330    (S.D.N.Y.       2009)   (quoting

Tractelbel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d

89, 95 (2d Cir. 2007)), aff’d, 355 F. App’x 454 (2d Cir. 2009).

The same is true whether the parties formed the contract orally

or with the written word.              However, where an alleged contract is

oral,    the    party     asserting     its    enforceability         bears   an   even

heavier burden of proving more than agreement on or acceptance

of all material terms, but also overall agreement to be bound by

the oral agreement without a writing.                 When the alleged contract

is oral, “[m]ore is needed than agreement on each detail [to

create     a     binding     obligation.             There     must     be]   overall

agreement . . . to enter into the binding contract.”                            N.F.L.

Ins. Ltd. by Lines v. B&B Holdings, Inc., 874 F. Supp. 606, 613

                                           8
(S.D.N.Y. 1995) (addition in original) (internal quotations and

citations omitted)); see also Shaftel v. Dadras, 39 F. Supp. 2d

217, 226 (E.D.N.Y. 1999) (detailing the four-factor test New

York law employs to discern whether parties intended to be bound

by their oral agreement without a writing), aff’d 78 F. App’x

169 (2d Cir. 2003). 4

     “Generally, courts look to the basic elements of the offer

and the acceptance to determine whether there is an objective

meeting of the minds sufficient to give rise to a binding and

     4
        Defendant makes much of the following text from an
unpublished decision, suggesting it represents a unique and
stringent standard for proving the existence of oral contracts
under New York law: “But, despite any multi-factor inquiry [as
to whether the parties intended to be bound without a writing],
if the Court finds substantial ambiguity regarding whether both
parties have mutually assented to all material terms, then the
Court can neither find, nor enforce, a contract.”       Barbarian
Rugby Wear, Inc. v. PRL USA Holdings, Inc., No. 06 Civ.
2652(JGK), 2008 WL 5169495, at *3 (S.D.N.Y. Dec. 9, 2008). The
citations Barbarian provides for support of that statement,
however, make clear that the statement is simply another way of
saying the following basic precepts of oral and written contract
law: “If an agreement is not reasonably certain in its material
terms, there can be no legally enforceable contract,” Missigman
v. USI Ne., Inc., 131 F. Supp. 2d 495, 506 (S.D.N.Y. 2001), and
“To create a binding contract, there must be a manifestation of
mutual assent sufficiently definite to assure that the parties
are truly in agreement with respect to all material terms,”
Express Indus. & Terminal Corp. v. Dep’t of Transp., 715 N.E.2d
1050, 1053 (N.Y. 1999).       We discuss the definiteness of
Defendant’s acceptance and the agreement’s material terms,
infra. But because we need not consider the definiteness of the
agreement’s material terms if we determine Defendant did not
manifest acceptance at all (which is hotly disputed), we begin
by   evaluating  whether Nordlander   expressed   acceptance to
Plaintiff’s offer.



                               9
enforceable        contract.”          Express        Indus.,      715    N.E.2d    at    1053.

“The first step” in that analysis requires a court “to determine

whether there is a sufficiently definite offer such that its

unequivocal        acceptance         will       give       rise     to    an    enforceable

contract.”          Id.     But,       even      assuming       Plaintiff’s        offer      was

sufficiently definite, Defendant maintains Plaintiff’s assertion

of its acceptance of his offer was not.                            We therefore move to

the next step in the mutual assent analysis: acceptance.

       As   long    as    the    offer      does      not    dictate      otherwise,      “oral

acceptance of an offer is valid.”                           22 N.Y. Jur. 2d Contracts

§ 45. Parties may also manifest the “‘assent necessary to form a

contract . . . by . . . act, or conduct which evinces the

intention of the parties to contract.’” Register.com, 356 F.3d

at    427   (quoting      Maffea,          668   N.Y.S.2d       at    654)).       Plaintiff

accordingly asked the district court to instruct the jury that

“a contract is an obligation which arises from actual agreement

of the parties, manifested by words, oral or written, or by

conduct.”         Supp.    J.A.       at    2.        The    district     court,     however,

refused     to     give   that    instruction,              concluding     the     trial      had

revealed     no     “conduct      .    .     .    that      could    be    interpreted         as

constituting an acceptance by the [D]efendant of any offer made

by [Plaintiff] so as to make a contract.”                            Id. at 4.       Instead,

the    court      instructed       the       jury      that     “[a]      contract       is    an

obligation which arises from actual agreement of the parties,

                                                 10
manifested    by   words,   oral   or   written.”        J.A.   at   559—60.   On

appeal, Plaintiff neither challenges the district court’s ruling

and subsequent instruction nor contends that Defendant accepted

his   offer   by   conduct.    To   the      contrary,    Plaintiff    contends

“Nor[d]lander agreed to the terms [of his offer], saying, ‘Okay,

okay, I get it.’”      Aple. Resp. Br. at 6 (quoting J.A. at 258);

see also id. at 19 (“[Plaintiff] specifically testified that

Nor[d]lander agreed to the terms, saying, ‘Okay, okay, I get

it.’”). 5 Because Plaintiff has evidently abandoned his claim that

Defendant accepted his offer by virtue of its conduct, we must

decide only whether a reasonable jury could conclude from the

trial evidence that Defendant accepted Plaintiff’s offer through


      5
       Plaintiff does not fail to mention the parties’ conduct
altogether.   In his brief, Plaintiff argues “[t]he parties’
nearly complete performance of their respective obligations
under the contract . . . is likewise ‘of major significance.’”
Aple. Resp. Br. at 28 (quoting R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 75 (2d Cir. 1984)).   But he contends
that the parties’ performance is of “‘major significance’” to
“the determination of whether the parties intended to be bound
in the absence of a written agreement[,]” not to the
determination of whether the parties had reached an oral
agreement in the first place, i.e., whether Nordlander or
Defendant accepted Plaintiff’s offer.   Aple. Resp. Br. at 27
(citing R.G. Group, 751 F.2d at 75—76 (detailing four factors
New York courts use to decide whether “the parties’ words and
deeds, within a given bargaining context, show an intent to be
bound only by a written agreement.”)).    Plaintiff must first
clear the hurdle of demonstrating Defendant assented to his
offer in order to reach the issue of whether the parties’
intended to be bound by their oral agreement without a written
document.



                                        11
oral or written words.               See King, 594 F.3d at 312 (explaining

the standard of review of a district court’s denial of a Rule 50

motion).

       Generally, “in order for an acceptance to be effective, it

must    comply    with     the       terms     of   the   offer    and    be   clear,

unambiguous and unequivocal.”                 King v. King, 617 N.Y.S.2d 593,

594 (N.Y. App. Div. 1994); see also 2 Williston on Contracts

§ 6:10 (4th ed. 2007) (“As a general principle, at common law an

acceptance,      in   order     to    be     effective,   must    be   positive     and

unambiguous.”).          When    an    offeree      communicates    “an   acceptance

[that] is ambiguous or equivocal—that is, an acceptance that a

reasonable    person      could       view     as    assent,     rejection,    or   an

invitation to bargain further . . . it is the offeror’s reaction

to that ambiguous acceptance that controls whether the parties

have entered into a contract.”                Johnson, 629 F. Supp. 2d at 330.

       [B]y their nature, equivocal responses are capable of
       being understood either as the offeree apparently
       intends them . . . or as the offeror might apparently
       understand them. . . .    To the extent that either
       interpretation is plausible, the offeree can hardly
       complain if the offeror understands the communication
       as the offeree apparently intended; and the offeror
       who reasonably treats an equivocal response as an
       acceptance may hold the offeree to a contract. This
       rule . . . operates to protect the offeror who acts
       reasonably in relation to what it supposes is intended
       to operate as an acceptance, yet provides the offeror
       with significant flexibility as the master of the
       offer. In short, how the offeror treats the offeree’s
       language will, assuming that treating the language
       either as language of acceptance or treating it as


                                             12
        language requiring further discussion is reasonable,
        determine the language’s effect.

Id. at 330—31 (quoting 2 Williston on Contracts § 6:10 (4th ed.

2004)).         So   long    as    the    offeror’s     interpretation          of    the

offeree’s equivocal acceptance is plausible or reasonable, New

York courts will find a contract has been formed.                             “In other

words, where an offeree communicates an ambiguous acceptance,

the     offeree      must        assume     the      risk     of        the   offeror’s

misinterpretation.”         Id. at 331.

      As Judge Learned Hand once explained: “‘A contract has,

strictly speaking, nothing to do with the personal or individual

intent of the parties.            A contract is an obligation attached by

mere force of law to certain acts of the parties, usually words,

which     ordinarily      accompany       and     represent    a    known     intent.’”

S.S.I.    Investors       Ltd.    v.   Korea    Tungsten    Min.    Co.,      Ltd.,   438

N.Y.S.2d 96, 100 (N.Y. App. Div. 1981) (quoting Hotchkiss v.

Nat’l City Bank, 200 F. 287, 293 (S.D.N.Y 1911)), aff’d by 434

N.E.2d    242     (N.Y.     1982).        Therefore,    ours       is    an   objective

inquiry.        We do not care about the “parties’ after-the fact

professed subjective intent.”               Cleveland Wrecking, 23 F. Supp.

2d at 292 (internal quotations omitted).                      Rather, in deciding

whether parties have reached an agreement, we must look to the

parties’:

      [O]bjective intent as manifested by                     their expressed
      words and deeds at the time. . . .                       In determining

                                           13
     whether   the  parties   entered into   a  contractual
     agreement and what were its terms, “disproportionate
     emphasis is not to be put on any single act, phrase or
     other expression, but, instead, on the totality of all
     of these, given the attendant circumstances, the
     situation of the parties, and the objectives they were
     striving to attain. . . .”

Id. (quoting Reprosystem, B.V. v. SCM Corp., 522 F. Supp. 1257,

1275 (S.D.N.Y. 1981)).    Therefore, “[w]hether an acceptance is

ambiguous or equivocal . . . depends not on the subjective,

undisclosed intent of the offeree, but rather on the offeree’s

words and actions as viewed from the perspective of a reasonable

person.”   Johnson, 629 F. Supp. 2d at 330.

    Finally, we must also note that “‘[w]hile the existence of

a contract is a question of fact, the question of whether a

certain or undisputed state of facts establishes a contract is

one of law for the courts.’” Gui’s Lumber & Home Ctr., Inc. v.

Mader Constr. Co., Inc., 787 N.Y.S.2d 555, 556 (N.Y. App. Div.

2004) (quoting Cortland Asbestos Prods. v. J. & K. Plumbing &

Heating Co., 304 N.Y.S.2d 694, 696 (N.Y. App. Div. 1969)).    More

specifically, “questions as to what the parties said, what they

intended, and how a statement by one party was understood by the

other are questions of fact; however, the matter of whether or

not there was a contract, in light of the factual findings on

these questions, is an issue of law.”     Ronan Assocs. v. Local

94-94A-94B, 24 F.3d 447, 449 (2d Cir. 1994) (citing Four Seasons



                                14
Hotels,     Ltd.    v.   Vinnik,     515    N.Y.S.2d      1,   6   (N.Y.    App.     Div.

1987)).

                                           A.

       Defendant     argued    in    its     Rule    50(b)     motion      before    the

district court that Plaintiff had failed to provide any evidence

of Defendant’s assent.          The district court did not see it that

way, explaining:

       [I]n [Plaintiff’s] testimony he says clearly and
       unequivocally that Mr. Nordlander accepted those
       terms, and that he reached an oral contract with the
       [D]efendant which incorporated those terms that he has
       stated.   He was asked, “. . . did Charles Nordlander
       ever say to you, did he in plain English say, yes,
       sir, I agree [Defendant] will share 50 percent of its
       profits?    Answer: Absolutely he did.    Absolutely.”
       There are statements like that throughout the record,
       where he said he told Mr. Nordlander what he
       wanted. . . . I think that testimony where he says he
       made the proposal to [D]efendant, and Mr. Nordlander
       accepted it and agreed to it absolutely, indicates
       that the parties did have a meeting of the minds, they
       did reach a contract, as stated from the portions of
       the record I just quoted, and that [D]efendant
       breached that contract, because they did not pay to
       [P]laintiff the compensation therefore that they
       agreed to pay.

J.A. at 526–28 (quoting J.A. at 253—54).

       On appeal, Defendant argues that Plaintiff’s testimony that

the    district     court     relied       upon   (quoted      above)      constitutes

conclusory     assertions      as    to    the    legal    meaning,      or    his    own

subjective interpretation, of Nordlander’s statements during the

June    3   phone    call.      As     a    result,      Defendant      asserts      such

testimony     cannot     be   relied       upon     to    determine     what    it     is

                                           15
Nordlander        actually    said     and    whether      any    such     statement

objectively constitutes assent to Plaintiff’s offer.                         Despite

Plaintiff’s repeated declaration that he and Nordlander had an

agreement,    Defendant       claims   that       the   only   specific    words   of

acceptance Plaintiff at trial ever attributed to Nordlander were

“Okay, okay, I get it.”           Defendant contends that statement does

not constitute unambiguous acceptance because it conveys at most

that Nordlander understood the terms of the offer, not that he

accepted     the    offer    on   behalf     of    Defendant.      So,     Defendant

maintains a contract was never formed.

      Context matters—a saying as old as time because it is true.

Because we must view the evidence in the light most favorable to

Plaintiff, we start with Plaintiff’s evidence of the context of

the   June    3    phone     conversation.          According     to     Plaintiff’s

testimony, he and Nordlander discussed the pilot and making it

into a series:

      A: And then [Nordlander] said, “All right, Richard,”
      basically you know, “Can you do this again?” . . . .
      And I said, “Charles it’s not for sale.” And he said,
      “How much do you have in it?” And I went through the
      same thing again.   “I’ve got 85,000 in it.” . . . .
      His job is—I assumed was to acquire the show, because
      he said, “How much do you want?” And I said, “Charles,
      this is not for sale.”
                                ***
      A. And at one point, we started talking numbers, and
      he was talking about what—you know, how much did that
      house go for, how much did I spend, and at the time I
      remember projecting—his concern was that to make sure
      that that partnership was fair, and he was saying,
      “How much do you think you are going to spend?” And

                                         16
       the rough numbers that I remember was basically you
       know, they are going to have about $2 million in it,
       and that, you know, they want to make sure that I
       didn’t, you know, come in on the light end. . . .
       But, you know, my rough estimate was that I was going
       to spend about $4 million . . . .

Id. at 147, 156—57.        The two agreed Defendant would hire a New-

York    based,     third-party   production     company    to   film   future

episodes:

       A: And [Nordlander] said, . . . “I’m having a hard
       time getting these guys to let you—we like to have
       production companies that are right here that are real
       close that are in New York. . . . I’ve got a company—
       there is two or three companies I want you to talk to.
       These guys are working on something for me right now.
       They are editors from HBO, and that’s what they do.”
                                 ***
       So anyway, we started talking about how we were going
       to engage a third-party production company, and you
       know, threw out, like I said, a couple of names, and
       he wanted me to meet these guys and talk with them.

Id.    at   148,    150.     They   discussed    the      series’   revenues.

Plaintiff stated his belief that he thought the show would be

profitable, but Nordlander disagreed:

       A: But in this situation, it was, “Charles, it’s not
       for sale. I own this thing. I have been—you know, I
       was told by somebody that this thing could make
       money.”   And Charles said, “Richard, don’t take this
       the wrong way.    Y’all did a really good show, but
       these kind of shows . . . don’t make money.”

Id. at 149.        Nordlander also explained that Defendant would not

accept any risk of the real estate aspect of the series.

       Q. Did you reach agreement concerning the real estate,
       the risk associated with acquiring and refurbishing
       real estate?


                                     17
       A. Absolutely. It was very firm from him that I was
       100 percent on my own on that, that A&E would not have
       any of the risk, any liability.     It wouldn’t be on
       deeds.   It had nothing to do with that.       It was
       clearly, totally separate, and they did not want any
       of the liability, any financial obligation of the risk
       with that.

Id. at 156.     “[Plaintiff] assured Nor[d]lander that [Defendant]

would bear none of the financial risk (or reward) relating to

the purchase and resale of the real estate.”            Aple. Resp. Br. at

4.     Taking   into    account    that   concern,    Plaintiff     made   the

following proposal:

       A. And, I said, “Charles, look, I’m a big boy. . . .
       I’ll take that risk.    But here’s the deal.   I will
       share revenue with you on this.     This is my show.
       I’ll do all the real estate . . . . All that risk is
       on me. I’ll buy all the properties. I’ll put all the
       employees on it. I will pay for everything. I’ll do
       every bit of that.”    And then, you know, he talked
       about the production, how much I had into it. I told
       him 85,000, and he said it was unrealistic, that we
       probably had costs in there that we didn’t take into
       account . . . but . . . if we were going to have a
       shot at this, and was going to be successful, then we
       had to keep the production costs down.    And I don’t
       recall the exact number, but I know it was below
       $150,000. . . .    He said if we can keep that below
       there.

Id. at 150.     “Under the proposed arrangement, [Defendant] would

bear the cost of producing the show, and [Plaintiff] would track

his out-of-pocket expenses related to production of the show. At

the end of the season, the parties would subtract their expenses

from   the   show[’]s   revenues    and   evenly     divide   any   surplus.”

Aple. Resp. Br. at 5.


                                     18
     Q. Did you reach an agreement as to who was going to
     front the production costs?
     A. Yeah.   They—he actually called them in-house . . . but
     he said he would take care of his in-house guys and I would
     take care of stuff in the field, that basically, we would
     have this production company at our disposal.
     Q. Okay.      Did you reach an agreement with him
     concerning the production of the show?
     A. Absolutely, we did.
     Q. Okay. What was the terms of the agreement?
     A. I was very forward.      At this point I had nothing to
     lose.   And I said, “Charles the show is not for sale.     I
     will—I will partner this with you. We will split revenue.
     I will pay for my side. . . .            Let’s keep track of
     expenses, and then we chop it up in the middle, and then if
     it makes money, we split it. If it doesn’t make money, I’m
     a big boy, I don’t need anything out of it, and you know, I
     just don’t make it.”
                                   ***
     Q. Okay. Let’s go back through one at a time.        Did you
     reach   an  agreement   about    anything   relative to  the
     production cost of the show?
     A. Absolutely.    Those guys—we would hire a third-party
     production company. They’d keep track of cost. They would
     front it, they would pay for it.        And then at the end,
     whatever the cost would be, you know, we come out—and I
     remember hesitating, thinking, I stood for 85,000, he’s
     putting 150 in there, if I could do what I can to keep that
     number down, we would come up better.
     Q. Did you reach an agreement concerning your production
     costs?
     A. Yeah. He basically said, “You keep track of it.” . . .
     I would keep track of my out-of-pocket expenses, and I will
     throw that in at the end, my expenses, his expenses on the
     actual production of the show.
     And then . . . once . . . everybody paid their expenses
     . . . if it didn’t make any money, I didn’t get
     anything . . . .

J.A. at 150—51, 155—56.

     Nordlander   responded   to   Plaintiff’s   proposal   by   warning

Plaintiff again that shows of this kind do not make money.            So

they discussed how they could get this show to make money.


                                   19
     Q. How did he respond to that?
     A. Well, he went through a couple of different things.
     He talked about shows not making money. . . . So we
     were kicking around different, different ideas on
     that, as far as how we could go out and generate, and
     make money on a show that he just told me these shows
     don’t make money.
                               ***
     Q. Did you discuss with him how you were going to get
     revenue for the show?
     A. Yeah. The different things between advertising and
     sponsors, and that we would, you know, collectively
     come up with a list of things that we felt that we
     could go out and generate money for this show,
     specifically.

Id. at 151—52, 158.      “[Plaintiff] then provided Nor[d]lander

with an illustration of these terms in the form of a lengthy

recounting of a deal he had made with an investor in a hotel

project.”   Aple. Resp. Br. at 5.

     Q. All right.   Can you go over for me what the terms
     of the agreement were?
     A. Yeah.    It was very simple.    I actually used an
     example . . . I told him . . . “Charles, look, I’m a
     real estate guy. . . . [I]f I’m brokering the deal, I
     take a commission . . . . I used an example, I bought
     a hotel years ago in Mount Pleasant. I bought it out
     at a foreclosure sale, and I bought it for $2.1
     million. . . . So I called this gentleman up . . . .
     And I said, “You know, if you can give me the money,
     you know, I will take care of everything on my side,
     I’ll buy it, I’ll fix it up and sell it, we split the
     profits.”
                               ***
     A. And I said, “So, Charles, just to show you what a
     good partner I am, on doing deals, here is what
     happens.” We needed $2.1 million. I only needed five
     percent.    The next day, I went and bid on the
     property.   I got it.   I needed my five percent.  He
     wired it down. . . . And so he had obligated, he was
     committed, fully ready, willing and able to send me
     down 2.1 million. I ended up not even having to take
     it.   We took our piece of paper and we sold our

                                20
        position to Red Roof Inn. . . .      I said, “We took
        that, we took the profits, we paid our expenses.” We
        had . . . seven or eight checks that we paid expenses
        first, and then we took what was left over and we
        chopped it in half, and he got his check and I got
        mine. And used that as an example for Charles.

Id.     at      153—55.        Nordlander        reiterated    his   concern      that

Plaintiff’s proposal might not be beneficial for Plaintiff.

       A. And Charles was concerned for me that this show was
       not going to make any money, and I was going to end up
       with nothing, and that I ought to take a sure thing,
       and I said, “Nope, that’s not what I’m doing. I’m not
       selling the rights to my show.” Very firm. . . . I
       went into a long drawn-out example of exactly how to
       split it.

J.A. at 155.            “Nor[d]lander agreed to the terms, saying, ‘Okay,

okay,       I    get    it,’   although    he     remained    concerned    that     the

agreement was not fair to [Plaintiff].”                  Aple. Resp. Br. at 5—6.

This statement by Nordlander is discussed in greater detail,

infra.       They also discussed credits for the series.

       Q. Did you reach any agreement with him concerning
       about credits, relative to the series?
       A. We did.    Because he talked about the pilot.    He
       looked at it, and right when it played on the pilot,
       the very first line up there said, executive producer,
       Richard C. Davis.
       And he told me, tiptoed around it and was saying,
       “Look, you know, that’s not going to go. . . . [W]e
       are going to get them some cheap labor, because we are
       going to give them a credit. They are going to be the
       producers. You are going to be the creator.”
       And I said, “Fine with me. Absolutely. No problem.”

J.A. at 157.            So, according to Plaintiff, by the end of their

June    3       phone    conversation     he     and   Nordlander    had   formed    a



                                            21
contract to make a television series based upon his pilot and

split the resulting profits equally.

        Q. Did you reach agreement with Charles Nor[d]lander
        to split revenue?
        A. Absolutely.    We reached an agreement on splitting
        revenue. He—I felt he was genuinely concerned that I
        was cutting a bad deal.
        Q. What was the split on revenue?
        A. It was right down the middle, 50/50. You take your
        half, I’ll take my half.

Id. at 157—58.

       On     cross    examination,     Plaintiff       testified     Nordlander

specified      one    condition   on   the   agreement    going     into   effect—

approval by Defendant’s board of directors.

       Q. Mr. Davis, there was no commitment by A&E in that
       phone call to actually make a television show?
       A. No, sir. It was contingent on board approval.
       Q. There was no agreement in the phone call to
       actually make a television show, correct, sir?
       A. It was an agreement, yes, sir.
       Q. There was no agreement to actually make the
       television show, correct, sir?
       A. Yes, sir.
       Q. Yes, there was no agreement?
       A. I see what you are saying. Yes, sir.

Id. at 248. Plaintiff also explained exactly what Nordlander

said     in   the     phone    conversation    that     led   him    to    believe

Nordlander had said “in plain English” that Defendant, pending

board    approval,     would    make   the   proposed    television       show   and

split the resulting profits equally.

       Q. Mr. Davis, did Charles Nor[d]lander ever say to
       you, did he in plain English say, yes, sir, I agree,
       A&E will share 50 percent of its profits?
       A. Absolutely he did. Absolutely.

                                        22
Q. Mr. Davis, let’s look at what you said in your
deposition . . . .
     (Thereupon, the video was played as follows:)
Q. Please tell me specifically as possible exactly
what Charles Nor[d]lander said to you that made you
think that you had a promise of a 50/50 partnership on
the revenue streams.
A. He understood, he totally agreed 100 percent that
they weren’t going to have to write me a check.       He
wanted to know how much we wanted for a show. We went
through the whole discussion, and I said it’s not for
sale, it’s for partnership.
     And I explained that whole concept on the whole
real estate deal.       There was no way he could
misunderstand.
                          ***
Q. Please just tell me as specifically as you possibly
can what words Charles Nor[d]lander said that made you
think you had this deal on a 50/50 revenue split.
A. When I laid out my real estate example once again.
I laid it out for him, the basis.
Q. What did he say?
A. I just told you that.     I just told you that.     I
went through that whole example, and I said, “It’s not
for sale.    It’s not for sale.   I’ll—I want to be a
hero to the network.”
     And Charles said, “Okay, okay, I get it.”
     (Thereupon, the video stopped playing.)
BY MR. FEIGELSON:
Q. So, Mr. Davis, you laid out a real estate example?
A. Where I split the revenue as 50/50.
Q. Laid out a real estate example.     Sir, just answer
the question.    You laid out a real estate example,
correct?
A. Correct.
Q. And you used the word “partner,” correct?
A. Correct.
Q. And you told Charles you wanted to be a hero to the
network, correct?
A. Absolutely.
Q. And he said, “Okay, I get it,” correct?
A. Yes, sir.
Q. And on that basis, you thought you had made a
binding agreement with A&E to divide up 50/50 all the
profits from the television show?
A. It—to this day, absolutely, yes, sir.


                          23
J.A. at 253—59 (emphasis added).

     Plaintiff    testified   over    and    over    again   in   unequivocal

terms as to his interpretation or characterization of his June 3

phone conversation with Nordlander.          He repeatedly declared they

“absolutely” had a deal.       Consequently, we accept, as we must,

that Plaintiff subjectively believed by the end of his June 3

phone conversation with Nordlander he had a deal with Defendant

to make a television show and to split the revenues equally.

But, our review of the record makes clear that Plaintiff was

only able to specify one statement of acceptance by Nordlander:

“Okay, okay, I get it.”       We take Plaintiff’s word for it, as we

must, that Nordlander said “Okay, okay, I get it.” 6                  We can

safely     say   that   statement     does     not     objectively     convey

unambiguous and unequivocal acceptance of Plaintiff’s offer.              We

cannot say, however, that such a statement made in a certain

tone of voice or in a given context could not plausibly mean “I

accept.”    As we explained, if Plaintiff reasonably or plausibly


     6
       This is also why the subsequent emails between Plaintiff
and representatives of Defendant in which Plaintiff refers to
his “deal,” “contract,” or “partnership” with Defendant are
irrelevant to the present inquiry.       None of those emails
indicate what Nordlander said in the June 3 phone conversation
to accept Plaintiff’s offer. Rather, they reflect what we have
already accepted as true—that Plaintiff believed he had reached
an agreement with Nordlander in that June 3 phone conversation
to make a television series and split the resulting profits
equally.



                                     24
understood       Nordlander’s       equivocal       statement       as    an     acceptance,

then a contract was formed.                 Therefore, we must decide whether

Plaintiff has presented sufficient evidence from which a jury

could conclude that a reasonable person would have interpreted

Nordlander’s statement as an acceptance.

       Plaintiff’s        testimony        reveals        that     he     and     Nordlander

extensively negotiated, discussing production costs, production

crew, production credits, real estate risk, raising revenue, and

splitting revenue, among other things.                           Nordlander stated his

deal-breaker—bearing any risk for the real estate—and the one

condition on going forward with production of the series—board

approval.        And, Plaintiff stated his deal-breaker—splitting all

revenue      equally—numerous              times     in      various            ways,    even

illustrating this term of his offer with a lengthy recounting of

a    prior   deal.      To    this,    Plaintiff      testified          Nordlander      said

“Okay, okay, I get it.”               He also testified Nordlander said their

making the television series was contingent on board approval.

Tellingly, accordingly to Plaintiff, Nordlander did not indicate

their     deal    was        contingent     on     anything        else     or    give    any

indication that Defendant would not accept a fifty-fifty split

of   revenue,      only      that   such    a     split    would        likely    not    be   a

beneficial arrangement for Plaintiff.                      Furthermore, no evidence

suggests Nordlander explained that the board would only approve

the series and the money to produce the series without approving

                                             25
the   agreement        to    split     net    profits      equally.         And,      Defendant

eventually       notified       Plaintiff         that   “[t]he        board       approved       the

money for our series.”               J.A. at 625.           Though the board approved

the   making      of    the    show,    it    seems      undisputed         that      the    board

neither considered nor approved any revenue sharing agreement.

Nothing     in     the        record    suggests         that       any     of      Defendant’s

representatives conveyed to Plaintiff that the board approved

“money     for    our       series,”    but       did    not      approve      a    fifty-fifty

agreement.        From this evidence, a reasonable jury could conclude

a reasonable person in Plaintiff’s position after such extensive

bargaining could plausibly interpret “Okay, okay I get it,” in

conjunction with the statement that the only condition is board

approval, as acceptance.

      In addition, there is sufficient, though not unequivocal,

evidence     from       which    a     reasonable          jury    could       conclude          that

Plaintiff        objectively         treated        Nordlander’s          statement         as    an

acceptance of his offer to make a television series and split

the revenues equally. Plaintiff allowed himself and his company

to    be   the     subject       of     thirteen         television         shows      made       by

Defendant.        Plaintiff testified that he worked hard to obtain

sponsors and advertisers for the show.                            J.A. at 181.          He also

coordinated       with      Defendant        on    using    certain       products      in       the

course     of    business       to     take       advantage       of    product       placement

opportunities, thereby increasing the show’s revenue.                                       Id. at

                                                  26
182—86.        In an e-mail to one of Defendant’s representatives,

Plaintiff expressed his frustration in not having been presented

with a written agreement that reflected his conversation with

Nordlander:          “I was asked up front how much I wanted for the

show and I told Charles then ‘I don’t want to sell, I want to

partner and share the risk and return’ because I knew this would

be a hit . . . .            I envisioned a partnership, it feels more like

indentured servant at this point.”              Id. at 706.       He said in an

e-mail to a representative of the third party production company

“Charles isn’t [employed by Defendant] anymore but that doesn’t

change the deal he and I cut prior to me even meeting you guys.

.   .    .      If    you     guys   are   participating   with    advertising,

sponsorship, dvd sales, ectm [sic] without us, that was not what

I was promised.”            Id. at 698.    In addition, Plaintiff testified

he attempted to get a written confirmation of his agreement with

Nordlander from one of Defendant’s representatives.                  During one

of those discussions he reiterated that his “deal was 50/50.”

J.A. at 218.          The representative’s notes from that discussion

reflect Plaintiff told her of his expectation of a fifty-fifty

split.       J.A. at 766.

        Naturally,      Defendant      points    to   other   statements     by

Plaintiff that it claims are inconsistent with his claim to have




                                           27
made a revenue-sharing agreement. 7                  We acknowledge that is a

plausible,       reasonable     interpretation          of   those        communications.

But, Plaintiff also proffers another reasonable interpretation.

Plaintiff testified those statements referred to the “production

and talent” aspect of his role in the series, which was separate

from his agreement to share revenues.                        Plaintiff additionally

argues that the jury could also have believed he and Defendant

were renegotiating their agreement for season two.                            That would

seem       to   have   been   the    case,      given    that       the    jury    awarded

Plaintiff half of only the first season’s profits.                                And, as

Plaintiff correctly notes, the jury was entitled to reject some

portions of his testimony, while accepting other portions.                            See

In re Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009) (“But a jury

is free to believe part and disbelieve part of any witness’s

testimony.”).           Moreover,     we     “must       disregard         all    evidence

favorable to the moving party that the jury is not required to

believe.”         Reeves,     530   U.S.   at    150.        None    of     the   evidence

Defendant has pointed to requires our belief.

                                           B.

       Even if Plaintiff and Nordlander agreed orally, Defendant

argues the agreement is unenforceable for indefiniteness because

       7
        Defendant refers to statements Plaintiff made to
investors, representatives of Defendant, and other television
networks. Aplt. Op. Br. at 24.



                                           28
Plaintiff and Nordlander did not discuss let alone agree on the

following “material” terms: (1) the categories of revenue that

would    be    included       in    “net    revenue,”      (2)    the     categories     of

expenses      that    would    be    deducted      from    “net       revenue,”    (3)   the

duration of the agreement, (4) the grounds for termination, or

(5) the identities of the parties.

       “Under New York law, no contract exists, nor may one be

implied,      where   parties       do     not   agree    to    its    material    terms.”

Cleveland      Wrecking,      23    F.Supp.2d      at     292   (internal       quotations

omitted).       Courts do not relish refusing to enforce agreements

for indefiniteness; but:

       [I]f the terms of the agreement are so vague and
       indefinite that there is no basis or standard for
       deciding whether the agreement had been kept or
       broken, or to fashion a remedy, and no means by which
       such terms may be made certain, then there is no
       enforceable contract.    Moreover, there [can be] no
       contract if the parties [have] fail[ed] to agree on
       all essential terms, and if the missing terms cannot
       be supplied through reasonable construction that is
       consistent with the parties’ intent.

Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d

578,    588    (2d    Cir.    1987)      (applying       New    York     law)     (internal

quotations      and    citations         omitted).        Nonetheless,       “[s]triking

down a contract as indefinite and in essence meaningless ‘is at

best a last resort.’”              166 Mamaroneck Ave. Corp. v. 151 E. Post

Rd. Corp., 78 N.Y.2d 88, 91 (1991) (quoting Cohen & Sons v.




                                             29
Lurie Woolen Co., 232 N.Y. 112, 114 (1921)).         The Court of

Appeals of New York has warned:

      Contracting parties are often imprecise in their use
      of language, which is, after all, fluid and often
      susceptible   to   different   and   equally   plausible
      interpretations.    Imperfect   expression    does   not
      necessarily indicate that the parties to an agreement
      did not intend to form a binding contract. A strict
      application   of   the   definiteness   doctrine   could
      actually defeat the underlying expectations of the
      contracting parties. Thus, where it is clear from the
      language of an agreement that the parties intended to
      be bound and there exists an objective method for
      supplying a missing term, the court should endeavor to
      hold the parties to their bargain.

Id.

      As to the categories of revenue and expenses, the district

court explained the parties’ agreement was simple and clear:

      [Plaintiff] didn’t want to sell the show, he wasn’t
      going to sell the show, he was responsible for the
      real estate, he’d put the people there to produce the
      show, he paid his expenses, [Defendant] paid [its]
      expenses, they deduct those expenses, and then split
      the profits fifty-fifty.      If he said that from the
      stand, he said it 25 times.      As far as expenses are
      concerned, I mean, he bought 44 tickets . . . to the
      World Series. And [Defendant] rejected those, because
      . . . . [t]hey were not related to the project. So I
      think it’s easy to assume, and I think the parties
      dealt with this assumption, that the expenses were to
      be those reasonably incurred in connection with the
      production of the show.      And that’s how they acted.
      So the fact that they didn’t have some formula, that
      [Plaintiff]   didn’t   propose   some  formula  in  his
      proposal to [Defendant] for arriving at expenses is
      unimportant.   I think it’s clear that those expenses
      can be computed without any difficulty. And it can be
      determined   which   are   reasonably  related  to  the
      production, and therefore, deducted before the profits
      are split.


                                  30
J.A. at 524–25.           Plaintiff also testified all revenue generated

by the airing of the show would be included in the contract’s

“revenues.”          He     explained     that     their     agreement        did    not

differentiate        revenue    from    advertising        during     the     show     by

companies     that    had    previously    done    business     with     or    already

bought advertising from Defendant from other forms of revenue

generated by the show. J.A. at 266—68.                 All can reasonably mean

all, without having to list every item included in all.                                We

therefore      conclude      sufficient     evidence       exists    from     which     a

reasonable jury could find that the parties reached an agreement

with sufficiently clear definitions of expenses, revenue, and

“net profits.”

      Contrary to Defendant’s assertion, Plaintiff testified that

he   and    Nordlander      discussed     the    duration    and     termination       of

their enterprise. Plaintiff testified he and Nordlander agreed

in their June 3 phone conversation that the series was subject

to renewal each year based upon the ratings the series received

and could have been canceled at any point by Defendant, though

Plaintiff admittedly hoped the show would continue indefinitely.

Id. at 263—64.         Aside from deciding not to renew the series at

the end of each season based on its ratings, Plaintiff concedes

he and Nordlander did not discuss the exact circumstances under

which      either   party    could   cancel      the   agreement.      Id.    at     262.

Nonetheless,        Plaintiff   testified       they   agreed       Defendant       could

                                          31
cancel the show at any time.                    Id. at 264.         From this evidence, a

jury could reasonably conclude the parties agreed the series

would continue          as    long    as    it    was    successful,         i.e.,   received

ratings, Plaintiff promised to continue as long as Defendant did

not terminate the show, and Defendant possessed the right to

terminate at will.              Plaintiff also contends that if Defendant

could terminate at will, it is objectively reasonable to assume

so could he, of course, subject to the implied covenant of good

faith and fair dealing.                    Either understanding is reasonable,

sufficiently          definite,         and      consistent          with      the   parties’

ultimately actualized intent to make a reality television series

together.        Therefore,          Plaintiff        presented       sufficient     evidence

upon    which     a     jury    could      conclude          the     parties    agreed     upon

duration and termination of their agreement.

       As   to    the        identity      of     the    parties       to    the     contract,

Defendant     does      not     actually        make    an    argument       other    than    to

declare in a single sentence the contract was fatally indefinite

as to who the parties were.                   Wahi v. Charleston Area Med. Ctr.,

Inc.,   562      F.3d    599,    607     (4th     Cir.       2009)    (explaining      that    a

party’s     single       declarative            sentence,          without     citations      to

authorities or the record, is insufficient to raise an argument

on appeal).       Regardless, sufficient evidence exists from which a

jury could conclude Defendant knew who Plaintiff was and that

Plaintiff’s       real       estate      flipping        business       organization         was

                                                 32
called       Trademark     Properties.           See    J.A.       at    590     (Nordlander

explaining      that      Plaintiff    made      clear     to      him    that       Plaintiff

wanted to take his real estate company, Trademark, national).

Defendant provides no argument or authority as to why it is

material      to    the    oral    contract      whether       Nordlander         agreed        on

behalf of Defendant to do business with Plaintiff or Trademark

or both.

                                            C.

      Defendant contends that New York law holds that contracts

that are sufficiently novel and complex must be in writing to be

enforceable and that this agreement is one such contract.                                       In

addition,       Defendant         maintains      that      Plaintiff’s           repeatedly-

asserted expectation that their agreement be reduced to writing

proves that the parties only intended to be bound by a writing.

      Defendant’s         statement    of     New      York     law      is    not    entirely

correct.       We can find no case, nor has Defendant cited one, in

which    a    New   York    court    declared       that      as   a    matter       of   law    a

contract was so novel and complex that it had to have been in

writing to be enforced.              Instead, under New York law whether an

oral agreement in the absence of a writing is binding depends on

the     parties’       objectively-manifested              intent.              Winston         v.

Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir. 1986).                                    And,

the sole case Defendant cites on this point makes clear that to

discern that intent, we consider a number of factors, including:

                                            33
        (1) whether a party has made an “explicit statement
        that it reserves the right to be bound only when a
        written agreement is signed,” (2) “whether one party
        has partially performed,” (3) “whether there was
        literally nothing left to negotiate or settle, so that
        all that remained to be done was to sign what had
        already been fully agreed to,” and (4) “whether the
        agreement concerns those complex and substantial
        business matters where requirements that contracts be
        in writing are the norm rather than the exception.”

Braun    v.   CMGI,    Inc.,    64    F.   App’x      301,       303   (2d   Cir.       2003)

(quoting R.G. Group, 751 F.2d at 75—76 (applying New York law))

(emphasis     added).         “No    single     factor      is   decisive,        but    each

provides significant guidance.”                  R.G. Group, 751 F.2d at 75.

Therefore,       contrary     to     Defendant’s       assertion,        “whether         the

agreement     concerns        those    complex        and    substantial          business

matters where requirements that contracts be in writing are the

norm” is just one factor the fact-finder considers in deciding

whether    the    parties     intended     to    be    bound      without     a    written

document.     Id. at 76; see also Consarc Corp. v. Marine Midland

Bank, N.A., 996 F.2d 568, 576 (2d Cir. 1993) (explaining that

these     factors     guide    the    fact-finder’s          determination         of     the

parties’ intention to be bound without a writing).

     First, Defendant contends because the alleged contract in

this case “involved potentially millions of dollars, was a sharp

departure from [its own] and industry practice . . . and by

[Plaintiff’s] own account could run for decades . . . . [a]

writing therefore was legally necessary to bind the parties.”


                                           34
Aplt. Op. Br. at 42.           We agree that the contract involved a

“substantial     business     matter”    and   it   may   well   not    have   been

Defendant’s typical practice to split revenues.                      But we also

note a reasonable jury could find that the contract at issue was

not so complex.     Hiring a third-party production company, adding

all revenue, subtracting all reasonable expenses, splitting the

remainder in two, and renewing each year depending on the show’s

ratings are easy enough concepts to understand.                  The jury could

have   also   considered      Defendant’s      demonstrated      willingness     to

produce,   pay   for,   and    air   a    television      series—a     substantial

business matter even without any agreement to share revenue—

without a written contract.

       Second, Defendant argues “[t]he evidence that the parties

intended and attempted to reach a written agreement strongly

confirms that the purported oral agreement was unenforceable”

without a writing.          Aplt. Op. Br. at 43.              Again, Defendant

cannot escape the fact that by its own admission it undertook to

develop and air a television series featuring Plaintiff without

a written contract.      It is not such a far leap from that fact to

infer that Defendant and Plaintiff also intended to be bound by

their oral agreement as to how to compensate Plaintiff without a

written contract.       There is also no evidence that Nordlander or

any other of Defendant’s representatives ever stated Defendant

would not be obligated to Plaintiff without a formally executed

                                         35
document.          Furthermore, we agree with the district court that

the    jury        could    have       reasonably         concluded   from       the        trial

testimony that Plaintiff “thought he had an oral contract, but

expected a written contract. . . .                           [M]ost people feel more

comfortable with a written contract than with an oral contract.

And I think that based upon his testimony, which the jury could

have    believed,          he    was    promised      a    written    contract         by    Mr.

Nordlander, and he thought he was going to get one.”                                 J.A. at

525.     That a party wants an oral contract reduced to writing

does not necessarily mean the parties did not intend to be bound

until such reduction; it may just reveal that the party wants to

avoid a “he said, she said” argument down the road as to what

the parties orally agreed.                  See Winston, 777 F.2d at 80 (“This

freedom       to     contract          orally   remains       even    if     the       parties

contemplate a writing to evidence their agreement.                               In such a

case, the mere intention to commit the agreement to writing will

not prevent contract formation prior to execution.”).

                                                D.

       Defendant claims that two releases Plaintiff signed entitle

it to judgment as a matter of law because the language of these

releases protects it from Plaintiff’s breach of contract claim.

“The meaning and scope of a release must be determined within

the    context      of     the   controversy         being   settled,      and   a     general

release cannot be construed to cover matters which the parties

                                                36
did not desire or intend to dispose of.”                              In re Brown, 885

N.Y.S.2d 222, 223 (N.Y. App. Div. 2009) (internal quotations and

citations omitted).

       Plaintiff          signed     two     releases       after    the   June      3    phone

conversation, but before he filed suit.                        The “Standard Location

Release” grants Departure (the production company that filmed

and edited the episodes) and its assigns the right to “record as

desired the premises located at Trademark Properties” and to

“exhibit, display and transmit . . . all or any portion of the

Footage” and indemnifies Departure and its assigns “from and

against         all   claims,        losses,       costs,      expenses,       settlements,

demands, and liabilities of every kind . . . arising out of or

incurred by reason of use of the Footage in accordance herewith

or    the   inaccuracy,            alleged    breach    or     actual      breach        of    any

representation,             warranty,       covenant,       agreement      .    .    .        made

herein.”         J.A. at 690.          The “Standard Personal Release” grants

Departure and its assigns “the irrevocable right and license to

use    [Plaintiff’s]          name     and     biographical         material    concerning

[Plaintiff],          and    the    right     to    exhibit,    distribute,         transmit,

display . . . edit, alter and modify any video tape . . . made

by . . . Departure Films . . . of [Plaintiff’s] likeness . . .

made by [Departure] . . . without additional compensation to

[Plaintiff]” and releases Departure and its assigns from “all

claims      .    .    .     arising     out    of     the    production,        exhibition,

                                               37
distribution, promotion and/or advertising of ‘untitled project’

. . . including without limitation, any claim for defamation,

slander or invasion of privacy.”               J.A. at 691.      It is undisputed

that   Departure      subsequently       assigned    all    of    its   rights   to

Defendant.     These    documents      only     release    Defendant     from    any

claims    Plaintiff    might    have     arising    from   the   display    of   the

footage of Trademark’s premises (the Location Release) and the

“production,       exhibition,         distribution,         promotion      and/or

advertising”    of     the   show   (the   Personal       Release).      Thus,   the

releases do not immunize Defendant from liability for breach of

the parties’ contract to share revenues.



                                         IV.

       Now, we turn to Defendant’s contention that the district

court’s    incorrect     jury    instructions       and     evidentiary     rulings

entitle it to a new trial pursuant to Fed. R. Civ. P. 59.                         We

review the district court’s denial of a motion for a new trial

and its rulings on the admissibility of evidence for abuse of

discretion.     See Figg v. Schroeder, 312 F.3d 625, 641 (4th Cir.

2002) (“We review for abuse of discretion a district court’s

denial of a motion for new trial . . . under Fed. R. Civ. P.

59.”); Schultz v. Capital Intern. Sec., Inc., 466 F.3d 298, 310

(4th   Cir.   2006)     (“We    review     a   district     court’s     evidentiary

rulings for abuse of discretion.”).                 “A trial court’s exercise

                                         38
of such discretion is entitled to substantial deference, and

will be upheld so long as it is not arbitrary or irrational.”

United    States       v.    Myers,       589   F.3d       117,    123   (4th    Cir.   2009)

(internal    quotations            and    citations        omitted).        But,    “[u]nless

justice requires otherwise, no error in admitting or excluding

evidence . . . is ground for granting a new trial . . . .                                  At

every    stage    of       the    proceeding,        the    court    must    disregard    all

errors and defects that do not affect any party’s substantial

rights.”    Fed. R. Civ. P. 61.                 We only grant a new trial when we

can say “‘with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

judgment    was        .     .     .     substantially        swayed     by      the    error,

[therefore] it is impossible to conclude that substantial rights

were not affected.’” Bank of Montreal v. Signet Bank, 193 F.3d

818, 834 (4th Cir. 1999) (quoting Kotteakos v. United States,

328 U.S. 750, 765 (1946)).

                                                A.

     Defendant claims the district court should have admitted

Paragraph 11 of Plaintiff’s complaint, pursuant to Fed. R. Evid.

801(d)(1)(A)       and           801(d)(2)(A).              According       to     Defendant,

Paragraph 11 states Plaintiff made the alleged oral agreement in

an in-person meeting with Nordlander and another representative

of Defendant, witnessed by a representative of Departure Films.

Defendant        maintains             Paragraph       11     is     inconsistent         with

                                                39
Plaintiff’s testimony that the contract was formed during his

June 3 phone conversation with Nordlander and therefore “key

evidence that discredited” Plaintiff’s account.                   Aplt. Op. Br.

at 51.     Plaintiff objected to its admission.               The district court

ruled    it   inadmissible      because     it   was   not   clearly    adopted   by

Plaintiff and not clearly inconsistent with his trial testimony.

J.A. 307—08.

      Even if the district court erred in deciding the complaint

did not satisfy the requisites for admissibility, we conclude

the error was harmless.            Defendant impeached Plaintiff on the

same point through the introduction of Plaintiff’s answer to

Interrogatory Number 9 and his deposition testimony.                     Defendant

asked Plaintiff at trial about his answer to Interrogatory 9 in

which he stated:

      The agreement was reached and discussed between
      Charles Nor[d]lander with [Defendant] and [Plaintiff].
      A conference call was then held between Charles
      Nor[d]lander, Thomas Moody, Nancy Dubuc, and Richard
      C. Davis at which time it was agreed that the
      Plaintiffs and the Defendant . . . would be equal
      50/50 partners of [Plaintiff’s] concept and treatment
      . . . and would share equally in all net revenues and
      proceeds generated from the exploitation of the
      series.

Id.   at   811;   see   also    id.   at    269—70     (defense   counsel   cross-

examines Plaintiff about his interrogatory answer).                      Defendant

also played at trial a part of Plaintiff’s videotaped deposition

testimony     during    which    Plaintiff       stated   about   the   conference


                                           40
call, “‘I remember that being the defining moment of when I

struck    this     deal      with     [Defendant].’”           J.A.      at     276.        This

evidence     contradicts         Plaintiff’s          trial      testimony        that      the

revenue-sharing contract was formed during the June 3 telephone

conversation          with   Nordlander.           Therefore,       the       admission       of

Plaintiff’s       complaint      would      have    only      reiterated        Plaintiff’s

conflicting account.

                                              B.

       In support of its defense that Nordlander and Plaintiff

never    made     a     revenue-sharing        contract,         Defendant       sought      to

introduce       testimony       from    Nordlander         and     two     of    its     other

employees    to       the    effect    that    reality      television          stars    never

receive revenue-sharing contracts.                    Defendant argues that their

testimony is not “expert” testimony but “factual context.”                                   As

such, Defendant claims the witnesses should have been able to

“‘offer    an     opinion      on     the   basis     of    relevant       historical        or

narrative    facts       [they      have]   perceived’”          without      being     deemed

“experts.”       Aplt. Op. Br. at 57 (quoting MCI Telecomm. Corp. v.

Wanzer, 897 F.2d 703, 706 (4th Cir. 1990) (internal quotations

and citations omitted)).               Plaintiff objected to this testimony

and the district court sustained this objection on the basis

that    these     individuals         had   not     been    designated          as     experts

pretrial and so could not testify as to industry practice.                                   In

summary,    the       district      court     ruled    as     to   all     three       of    the

                                              41
controverted        witnesses’        opinions:          “[T]his        witness    was    not

disclosed as an expert.              He has been asked to express an opinion

as to a certain practice prevailing or not prevailing in the

industry in which he works, and he cannot do that.”                                 J.A. at

363.

       A   witness     testifying       not       as    an     expert    must     limit   his

opinion testimony: “to those opinions or inferences which are

(a)    rationally      based    on    the     perception         of     the    witness,   (b)

helpful to a clear understanding of the witness’ testimony or

the determination of a fact in issue, and (c) not based on

scientific, technical, or other specialized knowledge within the

scope of Rule 702.”            Fed. R. Evid. 701.               Defendant did not seek

to admit solely the witnesses’ lay opinion testimony based on

“records kept by [them] personally under [their] control,” and

“predicated       on    [their]       personal          knowledge       and     perception.”

Wanzer, 897 F.2d at 706.              Rather, Defendant sought to admit the

witnesses’       specialized      knowledge        as     to    the   entire      television

industry.     Defendant was certainly entitled to present testimony

regarding     its      own   standard       practices          and    each      witness   was

allowed     to    testify      that     based          upon     their     experience      and

knowledge of historical facts no one had ever made a fifty-fifty

revenue sharing deal with Defendant.                           Therefore, the district

court did not abuse its discretion in deciding that to present

any    specialized       knowledge      of        the     television          industry,   the

                                             42
Defendant should have disclosed and qualified these witnesses as

experts.

                                        C.

     Defendant next argues the district court improperly allowed

Plaintiff to testify that he “owned” the television series and

that Defendant stole it from him despite Defendant’s objections

and incorrectly refused to issue a curative instruction on the

subject to the jury. 8          The district court overruled Defendant’s

objection to that testimony because “the word ‘own’ has a common

meaning,   and   .   .   .     when   [Plaintiff]        makes   that   expression,

that’s   expressing      his    intent,      and   his    understanding     of   the

status of the pilot [episode]. . . . [H]e has a perfect right to

testify to that.”         J.A. at 170–71.           And, the court told the

jury:

     What counsel is saying is that when he says he owns
     it, that’s a legal conclusion, and he may own it and
     he may not own it legally.   And the reason I let him
     testify to it is because that’s what he says because
     he thinks he owns it, and he expressed that thought in
     his conversation.   I’m not sure what will develop in
     this case at any later period of time. It may be that
     the question of ownership is a serious issue that you
     have to decide.   And if it does become an issue that

     8
       The substance of Defendant’s arguments as to the court’s
failure to sustain its objection and issue its requested jury
instruction on Plaintiff’s statements as to ownership and theft
of the show are the same.    We review both claims of error for
abuse of discretion.    S. Atl. Ltd. P’ship v. Riese, 284 F.3d
518, 530 (4th Cir. 2002). Therefore, we treat both issues
simultaneously in this section.



                                        43
     you have to decide, then I may be required to charge
     you the law as to ownership, and what it takes for
     someone to own a property such as this.    And if that
     is the case, then you can decide that issue of
     ownership if it becomes necessary. And the fact that
     this witness has said he owned it, and I let him
     testify to it, may or may not be critical as to that
     issue, if we do get to that issue and if you are
     called upon to decide it. So it’s a legal conclusion
     that you may have to decide, and if you do, I’ll give
     you the law upon which you can decide it, you finding
     the facts.   But if it’s not a legal conclusion, and
     that has to be decided, and he can express his opinion
     about it, then his testimony can come in.     Okay?  I
     don’t mean to confuse you, but I can’t predict exactly
     what’s going to happen in the case. And if ownership
     does become a legal issue, then I will submit that
     issue to you to decide, based upon applicable law.
     Okay?

Id. at   171–72.       Defendant    requested     a   jury   instruction   that

Plaintiff’s statements as to ownership and theft are irrelevant

to Plaintiff’s contract claim.           The district judge rejected the

charge, explaining:

     [M]y charge says nothing about ownership. It says to
     prove a breach of contract, you’ve got to prove this,
     this, and this. . . . [Plaintiff] inserted those words
     [of ownership and theft], but ownership is not
     necessary . . . I’m going to tell them what he has to
     prove, and he doesn’t have to prove ownership.

Id. at 438–39.

     The district court did not abuse its discretion in either

failing to sustain Defendant’s objection or refusing to give the

requested curative instruction.             The court informed the jury

that it would let the jury know if ownership was an issue it

needed   to   decide   and   that   if     it   was   not,   then   Plaintiff’s


                                      44
statements on the subject were essentially irrelevant.                         When the

court did not instruct the jury on ownership it was left to

decide the only issue it was given instructions to decide—the

contract claim.        Moreover, we can infer from the jury’s award of

half     of    only   the     first     season’s       profits,     rather     than    an

“owner’s”      half    of    all      seasons’     profits,       that    it   was     not

influenced by Plaintiff’s allegations of ownership.

                                           D.

       Defendant      next    complains     the    district       court    erroneously

failed    to    instruct     the   jury   on     the   requirement        of   “specific

words of assent.”           Id. at 439—40.        “We review challenges to jury

instructions for an abuse of discretion.”                   S. Atl., 284 F.3d at

530.     “Instructions are adequate if ‘construed as a whole, and

in light of the whole record, [they] adequately [inform] the

jury of the controlling legal principles without misleading or

confusing the jury to the prejudice of the objecting party.’”

Id. (quoting Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir.

1987)).       Even if we detect error, we do not reverse “unless the

error seriously prejudiced the challenging party’s case.”                        Id.

       Defendant submitted thirty-six proposed jury instructions.

Then at trial, Defendant’s counsel orally requested another jury

instruction to the effect that under New York law formation of

an oral contract requires “specific words of assent” based upon

two cases, Gomez v. Bicknell,              756 N.Y.S.2d 209 (N.Y. App. Div.

                                           45
2002), and Agric. Ins. Co. v. Matthews, 749 N.Y.S.2d 533 (N.Y.

App. Div. 2002).         Defendant did not submit to the district court

a copy of the specific instruction it requested on this issue.

See J.A. at 439–40 (“Your Honor, the last thing we would request

is a charge that we don’t have a specific charge for, but is

incorporated in the Gomez case, and the Agricultural Insurance

Company that I passed up, which is an oral contract in New York,

there was a requirement for specific words of assent.”).                          Nor

does it provide the text of this hypothetical instruction on

appeal.      The joint appendix on appeal only provides two pages of

the transcript of the discussion of this proposed instruction

which does not reveal how the court ultimately ruled on the

instruction (though we can tell by the instructions it did give,

it     refused    to     give   this    requested    instruction)        and,   more

importantly, why it so ruled.             Nonetheless, Defendant argues on

appeal its requested instruction was necessary because without

it the jurors were free to conclude, allegedly contrary to New

York    law,     “that   they   could    recognize    a    contract      by   cherry-

picking Plaintiff’s conclusory statements about the existence of

an agreement while disregarding all of Plaintiff’s contradictory

admissions and writings.”          Aplt. Op. Br. at 49.

       The   district      court   instructed   the       jury   there    are   three

essential elements to the formation of a binding contract:



                                         46
      First, that there is a contractual intent on the part
      of all parties to the contract . . . both of those
      people have got to have an intent, a desire to enter
      into a contract.    You don’t enter into a contract by
      accident. . . .    And the second essential element is
      . . .   an  actual   meeting  of   the  minds  of  the
      parties. . . .   In other words, they agree on all of
      the elements of the contract.        You can’t have a
      contract if you don’t agree on everything. . . . Now,
      there are some contracts in our law that must be in
      writing. . . . But this is not such a contract . . .
      and this one can be agreed upon, can be made, can be
      made to the point of being enforced if it is oral, or
      partially oral and partially written.    But there has
      to be an offer and an acceptance for there to be a
      contract.

J.A. at 460–61.          As our extensive discussion of the requirements

for   contract      formation    under    New    York    law     make   clear,    the

district court’s instructions on acceptance and mutual assent to

material terms are adequate and do not misstate New York law.

                                         E.

      Lastly, Defendant challenges the district court’s response

to a jury question.           During its deliberations, the jury asked:

“Do   we    need    to    determine   that    there     is   a    revenue    sharing

contract between the two parties?               Do we need to determine that

there      is   a   50/50   revenue    split     contract        between    the   two

parties?”       The district court responded by explaining that it:

      [D]idn’t suggest any particular type [of] contract to
      you.   And [it] didn’t do that because that’s really
      not part of the law; that’s a part of the facts. But
      I did say to you that when you considered this first
      element, the existence of a contract, and if you find
      that [P]laintiff has proven the existence of a
      contract . . . then you will know what that contract
      provides. . . . [I]f he has proven it, you know what

                                         47
       it is; you know whether it’s a 50/50 split; you know
       whatever the evidence supports. And I can’t tell you
       you have to find a particular kind of contract because
       that’s just not my job.

Id. at 470–71.

       “We    review   a     district      court’s    decision      to   respond    to   a

jury’s question, and the form of that response, for an abuse of

discretion.”         United States v. Foster, 507 F.3d 233, 244 (4th

Cir.     2007).        “‘[I]n       responding       to   a   jury’s      request    for

clarification on a charge, the district court’s duty is simply

to respond to the jury’s apparent source of confusion fairly and

accurately without creating prejudice.’”                      Id. (quoting United

States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995)).                          “An error

requires reversal only if it is prejudicial in the context of

the record as a whole.”              Id.

       Defendant argues the district court abused its discretion

by not directly answering the questions asked and failing to say

that the 50/50 profit share as contended by Plaintiff was the

only agreement the jury could possibly recognize.                        By failing to

answer       the   questions,       Defendant      claims     the    district       court

essentially        invited    the    jury    to   craft   its    own     version    of   a

contract—which is what it claims the jury did by awarding only

half of the revenue from the first season to Plaintiff, rather

than awarding half of the revenue of all three seasons to which

Plaintiff asserted he was entitled.


                                            48
       First, the district court’s answer did not misstate the law

or the facts.         Second, its answer did not invite the jury to

“craft” its own contract, but it did properly remind the jury

that    only    the   jury    could     “find”        or     “determine”    whether    a

contract existed and, upon the basis of that conclusion, decide

what the terms of the contract were.                   And, lastly, the jury was

free    to     believe   parts    and     disregard          parts    of   Plaintiff’s

testimony and evidence.          Based on the jury’s verdict, it likely

concluded based upon Plaintiff’s testimony and other evidence

that    the    parties   had     agreed        to    split     equally     the    show’s

revenues, but disregarded other parts of Plaintiff’s testimony

and evidence in deciding that Plaintiff was not entitled to half

of the revenue from the second and third seasons because the

parties had only reached an agreement as to the first season.



                                          V.

       For    the   reasons   herein,     we        affirm    the    district    court’s

denial of Defendant’s motions for a judgment as a matter of law

and a new trial.

                                                                                 AFFIRMED




                                          49
DUNCAN, Circuit Judge, dissenting from the judgment:

      I am in full agreement with the majority’s conclusion that

Mr.   Davis      deserves     to    be    compensated       for       the    services    he

indisputably provided A&E Television Networks.                         Davis’s position

is made all the more sympathetic by the fact that A&E bears

significant responsibility for the failure to reduce a contract

memorializing its understanding to writing.

      Moreover,      it     certainly      appears       that        Davis    had    viable

claims.     He could have brought an action in quantum meruit.                           As

the   majority      recognizes,         Davis    also     asserted          acceptance   by

conduct, on which the district court, inexplicably, declined to

instruct.        Unfortunately, however, the jury was not asked to

find facts undergirding either such theory.

      We   are    thus    left     with    the    contention         that    Nordlander’s

statement,    “Okay,      okay,     I    get    it,”    J.A.    at    258,    constitutes

“clear, unambiguous and unequivocal” acceptance, IBM Corp. v.

Johnson, 629 F. Supp. 2d 321, 330 (S.D.N.Y. 2009), which is

simply not the law.           The majority’s reliance on Johnson for its

conclusion that “if [Davis] reasonably or plausibly understood

Nordlander’s equivocal statement as acceptance, then a contract

was formed,” (Maj. Op. at 24) runs contrary to the basic legal

principles       underlying      contract       formation.           Contracts      require

mutual assent, and a unilateral understanding, by definition,

cannot meet that requirement.

                                           50
     Because   I   do   not   believe   a   reasonable   person   would

interpret “Okay, okay, I get it,” alone as acceptance, or indeed

as anything other than “I understand what you are saying,” I

must respectfully dissent.




                                  51
