Schaller Telephone Co. v. Golden Sky Systems, Inc. (139 F. Supp. 2d 1071, 2001)

United States District Court for the Northern District of Iowa 2001-04-23

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

BENNETT, Chief Judge.

TABLE OF CONTENTS

I. INTRODUCTION.1074

A. Factual Background.1074

B. Procedural Background.1076

II. LEGAL ANALYSIS.1078

A. Standards For Summary Judgment.1078

B. Schaller’s Breach-Of-Contract Claim.1079

1. Applicable principles of Iowa contract law.1080

a. Existence and terms of an oral contract.1080

b. Negotiations and reduction to writing.1081

i. The Faught decision.1081

ii. Faught’s precursors.1088

2. Did these negotiations ripen into an oral contract?.1085

a. Golden Sky’s intent not to be bound except by a written agreement. 1085

b. Manifestations of assent to an oral contract.1086

i. Agreement to the “essential term” of price.1087

ii. Agreement on all terms .1089

Hi. Representations that the only contingency was board approval.1089

iv. Other conduct suygesting an ayreement had been reached.1090

v. Weary’s statements.1091

vi. Agreement to agree.1092

vii. Scope of Golden’s Sky’s disclaimers .1092

c. Consideration of other factors.1093

C. Fraudulent Misrepresentation.1096

. 1. The claim as pleaded and clariñed in response to interrogatories_1098

2. Merits of summary judgment on the claim as formulated.1104

a. Fraudulent misrepresentation under Iowa law.1104

b. Misrepresentations of intention to perform.1106

c. Other “misrepresentations” .1106

D. Golden Sky’s Counterclaim.1108

III.CONCLUSION 1108

In Greek mythology, Pegasus, the winged horse, was the mount of the hero Bellerophon when he rescued the kingdom of Lycia from the fire-breathing monster ChiimEra. In this commercial litigation, plaintiff Schaller Telephone Company, disappointed by failure to close a deal to sell its satellite television assets to defendant Golden Sky Systems, Inc., was rescued from the full extent of any loss when Pegasus Communications Corporation bought Schaller’s satellite television assets for over ten million dollars. Nevertheless, Schaller filed this suit against Golden Sky and two of its employees, alleging breach of an oral contract and asserting that Golden Sky’s offer to buy its assets was a “chimera” of a different sort, because Golden Sky fraudulently misrepresented its intent and ability to perform the transaction. For its part, Golden Sky asserts a counterclaim of unjust enrichment arising from Schaller’s failure to pay for satellite dishes that Golden Sky provided during the negotiation of the asset purchase agreement. Golden Sky now seeks summary judgment on both Schaller’s claims and its own counterclaim. Following submission of a voluminous record and extensive arguments, written and oral, the court’s task is to rule on Golden Sky’s motion.

I. INTRODUCTION

A. Factual Background

This dispute arises from the parties’ failure to close a deal for defendant Golden Sky Systems, Inc., to purchase plaintiff Schaller Telephone Company’s exclusive rights to provide DirecTV satellite service to homes in Schaller’s service territory. For the sake of convenience, the court will refer to the failed transaction between the parties as the purchase of Schaller’s DBS (“direct broadcast satellite”) assets. This summary of the factual background to the parties’ dispute is by no means complete or detailed; rather, it is intended to provide only the background essential to put in context the parties’ claims and counterclaims and Golden Sky’s motion for summary judgment. Where necessary, the court will examine pertinent undisputed and disputed facts in more detail in the course of its legal analysis.

Schaller entered the DBS business in August of 1992, when it acquired from the National Rural Telecommunications Cooperative (NTRC) the rights to provide DBS programming services from DirecTV to cabled and non-cabled homes in Wood-bury, Monona, Plymouth, and Ida Counties in Iowa. Golden Sky was formed in 1996 for the purpose of acquiring and owning distribution rights to DirecTV, and operating DirecTV programming services and equipment. Golden Sky’s business strategy has been to expand its market through the acquisition of additional territories and the rapid increase of subscribers in those territories. In the fall of 1998, Golden Sky first expressed an interest in purchasing Schaller’s DBS assets. The parties’ negotiations of a possible purchase of Schaller’s DBS assets by Golden Sky were long and complex. For background purposes, the court will touch only upon the principal landmarks in those negotiations.

The principal players in this drama are Steven Reimers, the President of Sehaller Telephone Company, Steven R. Jensen,-Schaller’s attorney and principal negotiator on Schaller’s behalf with regard to the Golden Sky transaction, Rodney A. Weary, the President and CEO of Golden Sky, Jo Ellen Linn, Golden Sky’s General Counsel, LaQuita Jones, Golden Sky’s Vice President for Acquisitions, and Ed Foster, outside counsel hired by Golden Sky to negotiate the transaction with Sehaller. The parties agree that only Reimers and Weary had the authority to bind their respective parties by entering into a written agreement for the sale and purchase of Schaller’s DBS assets.

After preliminary inquiries and the exchange of some information, on March 9, 1999, Golden Sky sent Sehaller its first formal letter of interest making a conditional offer to purchase Schaller’s DBS assets for $6,400,000 for a minimum of 3,200 subscribers, plus an additional $300 per subscriber in excess of 3,200. As a per subscriber deal, this offer was for a base price of $2,000 per subscriber. At about the same time, Golden Sky’s main rival, Pegasus Communications Corporation, also made a somewhat better offer to purchase Schaller’s DBS assets. Therefore, on May 26, 1999, Golden Sky sent Sehaller a second letter of interest upping its offer. The May 26, 1999, letter made Sehaller a conditional offer of $11,070,000 for a minimum of 4,100 subscribers, or $2,700 per subscriber, plus an additional $300 per subscriber in excess of 4,100. Although negotiation of numerous other issues began in earnest after this second letter of interest, the per subscriber price Golden Sky offered for Schaller’s DBS assets remained at $2,700.

The parties’ representatives held a meeting in Council Bluffs, Iowa, on June 30, 1999, to see if they could put together various details of a deal for the sale of Schaller’s DBS assets to Golden Sky. Prior to that meeting, Steven Jensen, Schaller’s attorney, requested and received a copy of a “standard form” of written asset purchase agreement typically used by Golden Sky from Golden Sky’s outside counsel, Ed Foster. Jensen requested the “standard form” agreement so that he could get some indication of the terms that Golden Sky normally put in such agreements and to identify issues or concerns for Sehaller.

One thing of interest to Sehaller at this time was increasing its subscriber total to 5,000 or more to increase the purchase price for its DBS assets. Therefore, during the course of the meeting on June 30, 1999, in addition to other terms, the parties discussed a purchase price of $2,700 per subscriber for up to 5,000 subscribers, for a maximum total price of $13,500,000, with a reduction in purchase' price of $2,700 per subscriber for every subscriber short of 5000.

During the course of the negotiations that followed, the parties exchanged several “blacklined” draft agreements, which need not be detailed here. However, after further negotiations, on July 23, 1999, Golden Sky sent Sehaller a “Letter of Intent” to “confir[m] proposed terms under which Golden Sky Systems, Inc., ... will acquire all of the assets, business and property from Sehaller Telephone Company ... for the provision of DIRECTV® programming services pursuant to NRTC/Member Agreement For Marketing and Distribution of -DBS Services” in Schaller’s service area.- The Letter of Intent also expressed “the intention of the parties to begin immediate, good-faith negotiation between them of an ‘Asset Purchase Agreement,’ ” subject to various terms and conditions as might be customary in the industry or agreed between the parties.- The Letter of Intent indicated a “Base Purchase Price” of $13,500,000 for not less than 5,000 active subscribers, with a reduction of $2,700 for each non-qualifying subscriber less than 5,000, and no increase for any subscribers over 5,000. Although Golden Sky’s President, Rodney A. Weary, signed this Letter of Intent, no representative of Schaller ever signed or returned this letter as requested.

The negotiators for the parties met again in Kansas City, Missouri, on August 25, 1999, and made substantial progress in their negotiations. Golden Sky’s Board of Directors approved the transaction on August 26, 1999, and authorized officers of the company to negotiate, execute, and deliver all necessary agreements to effect the deal. Schaller’s Board of Directors took similar action on August 27, 1999.

On September 3, 1999, the principal negotiators for the parties participated in a conference call. During that call, Golden Sky’s President, Rodney Weary, purportedly reiterated that Golden Sky intended to pay the price the parties had agreed upon. After that conference call, Golden Sky sent Schaller a draft letter memorializing what Golden Sky believed had been agreed to in principle. The draft letter includes reference to the parties’ agreement that Golden Sky would provide Schaller with 288 Single LNB DBS systems on September 6, 1999, which the parties agree were intended to assist Schaller in its attempts to increase its number of subscribers. Schaller did indeed pick up these DBS systems from Golden Sky. Although Golden Sky requested that Schaller approve the statement of the agreement in principle, after which the letter would be signed by Golden Sky’s President, Rodney Weary, Schaller did not respond and the letter was never signed. Instead, shortly after the September 3, 1999, meeting, Schaller contacted Pegasus Communications Corporation to see if Pegasus was interested in entering into negotiations to purchase Schaller’s DBS assets for $14 million. No deal between Schaller and Pegasus was consummated at that time.

The exchanges of “blacklined” drafts of an Asset Purchase Agreement, which began during the summer, culminated in a “blacklined” draft dated September 21, 1999. Schaller contends that this draft embodies the parties’ agreement on all essential terms of the transaction. However, neither the “blacklined” draft nor a “clean” copy of the September 21, 1999, agreement was ever signed by any representative of either of the parties and there is no record that either Weary or Reimers was ever presented with the September 21, 1999, agreement, in either a “black-lined” or “clean” form.

Instead, on September 23, 1999, by letter from Foster to Jensen, Golden Sky notified Schaller that it would not go forward with the transaction. Specifically, the letter stated that Golden Sky’s “Board has decided to discontinue negotiations with Schaller under the proposed terms and conditions” after “considering] the impact of recent changes in the credit and financial markets on the DBS industry.”

Pegasus Communications Corporation, Golden Sky’s primary rival, ultimately bought Golden Sky for just over $1 billion in a deal that was announced on January 5, 2000, and closed in May 2000. On March 14, 2000, Pegasus also acquired Schaller’s DBS assets for $10,096,000, or approximately $2,000 per subscriber for 5,050 subscribers. Before either of those transactions took place, however, Schaller commenced this litigation against Golden Sky.

B. Procedural Background

On October 15, 1999, Schaller filed suit against Golden Sky, its President, Rodney Weary, and its General Counsel, Jo Ellen Linn, in the Iowa District Court for Wood-bury County, asserting claims of fraudulent misrepresentation, negligent misrepresentation, fraudulent nondisclosure, and breach of contract arising from collapse of the deal for Golden Sky to purchase Schal-ler’s DBS assets. Golden Sky removed the action to this federal court on November 10, 1999. On December 17, 1999, Golden Sky simultaneously filed an Answer and Counterclaim to Schaller’s Petition and a motion to dismiss. Golden Sky’s counterclaim alleges unjust enrichment and seeks to recover $75,095 for satellite dishes it provided to Schaller for which Schaller has not paid. Golden Sky’s motion to dismiss asserted, inter alia, that Schaller had not pleaded fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure.

By order dated January 18, 2000, this court denied Golden Sky’s motion to dismiss without prejudice, on the ground that Schaller’s original state-court petition had not been subject to federal pleading rules and Iowa has no correlate to Federal Rule of Civil Procedure 9(b). The court’s ruling on Golden Sky’s motion to dismiss also noted that Schaller had filed a First Amended Complaint, which Golden Sky remained free to challenge.

Schaller’s First Amended Complaint, filed January 3, 2000, again alleged fraudulent misrepresentation, negligent misrepresentation, fraudulent nohdisclosure, and breach of contract. Schaller also filed a reply to Golden Sky’s counterclaim on January 3, 2000. On January 18, 2000, Golden Sky again simultaneously filed an Answer and a motion to dismiss Counts II through IV of Schaller’s First Amended Complaint. Golden Sky did not, however, renew its challenge to the fraudulent misrepresentation claim as repleaded in the First Amended Complaint.

On July 18, 2000, this court entered an Order Regarding Defendants’ Motion To Dismiss First Amended Complaint dismissing Counts II (negligent misrepresentation) and III (fraudulent nondisclosure) in their entirety and dismissing Count IV, Schaller’s breach-of-contract claim, as to individual defendants Rodney Weary and Jo Ellen Linn. Following this ruling, Schaller’s remaining claims are a claim of fraudulent misrepresentation, in Count I of Schaller’s First Amended Complaint, and a claim of breach of contract against Golden Sky itself, in Count IV. Also still before the court is Golden Sky’s counterclaim of unjust enrichment.

Following discovery, Golden Sky moved for summary judgment on January 5, 2001, seeking judgment in its favor on Schaller’s remaining claims and its own counterclaim. On February 1, 2001, Schaller resisted Golden Sky’s motion for summary judgment and, on February 15, 2001, filed an amended and substituted resistance. Schaller resists summary judgment on its claims of breach of contract and fraudulent misrepresentation, asserting that there are various genuine'issues of material fact on these claims that must be resolved by a jury. Although Schaller acknowledges that it owes Golden Sky payment for the satellite dishes, Schaller contends that judgment on Golden Sky’s counterclaim should be deferred as a set off against any damages Schaller may recover on its fraud and contract claims. Golden Sky filed a reply brief on February 12, 2001, and Schaller filed a surreply brief on March 12, 2001. The briefing of the parties on the issues presented was both excellent and extensive and was supported on each side by voluminous appendices of exhibits and transcripts of deposition excerpts.

The court heard oral arguments on Golden Sky’s motion for summary judgment on April 16, 2001. At those arguments, plaintiff Schaller Telephone Company was represented by Alan E. Fredregill and Jeff W. Wright of Heid-man, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., in Sioux City, Iowa. Defendant Golden Sky Systems, Inc., was represented by William D. Beil, who argued the motion, and Brooks A. Richardson of Rouse, Hendricks, German, May, P.C., in Kansas City, Missouri, and G. Daniel Gilde-meister of Gildemeister & Keane, L.L.P., in Sioux City, Iowa. Like the briefing, the parties’ oral arguments were excellent.

Following the oral arguments, the court took the unusual step of forecasting its ruling, in light of the short time remaining until trial is scheduled to begin on May 7, 2001. This opinion now provides the court’s written ruling and rationale.

II. LEGAL ANALYSIS

A. Standards For Summary Judgment

This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R.CrvP. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows:

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof.

(c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a)-(c) (emphasis added).

Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 588 (1986)). As to whether a factual dispute is “material,” the Supreme Court has explained, “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999); Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.1995); Hartnagel, 953 F.2d at 394.

Procedurally, the moving party, here Golden Sky, bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston, 133 F.3d at 1107; Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). “When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Rather, the party opposing summary judgment, here Schaller, is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach, 49 F.3d at 1325. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct.. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party. and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; Quick, 90 F.3d at 1377 (same).

With these standards in mind, the court turns to consideration of Golden Sky’s motion for summary judgment on Schaller’s claims of breach of contract and fraudulent misrepresentation and Golden Sky’s own counterclaim of unjust enrichment.

B. Schaller’s Breach-Of-Contract Claim

Golden Sky first seeks summary judgment on Schaller’s breach-of-contract claim. In Count IV of its First Amended Complaint, Schaller contends that Golden Sky agreed to purchase Schaller’s rights to provide satellite television service to homes in Schaller’s exclusive service area for the sum of $13,500,000, but that Golden Sky breached the parties’ contract. First Amended Complaint, Count IV, ¶¶ 23-24. In its motion for summary judgment, Golden Sky contends that it is entitled to summary judgment on this claim, for the following reasons: (1) no oral agreement was formed, because the parties did not intend to be bound in the absence of a signed writing, and no such writing was ever executed; (2) the statute of frauds bars Schal-ler from establishing the existence of its alleged oral contract; and- (3) the parties never gave mutual assent to definite terms of any contract. In response, Schaller contends that various fact questions preclude summary judgment on this claim, including whether or not mutual assent to all definitive terms was given by the parties, and consequently whether all that remained to be done was to sign the agreement the parties had reached orally; whether or not the parties intended to be bound only by a final written and signed agreement; and whether or not promissory estoppel prevents the application of the statute of frauds to this contract. The court will consider these arguments for and against summary judgment on this claim, to the extent required, in more detail below.

1. Applicable principles of Iowa contract law

The court’s consideration of the propriety of summary judgment on Schaller’s breach-of-contract claim begins with a consideration of applicable principles of Iowa contract law concerning when an enforceable oral contract is formed. The existence and terms of an oral contract, as well as whether the oral contract was breached, are ordinarily questions for the trier of fact. See Audus v. Sabre Communications Corp., 554 N.W.2d 868, 871 (Iowa 1996); Dallenbach v. Mapco Gas Prod., Inc., 459 N.W.2d 483, 486 (Iowa 1990); Warfield v. Norwest Bank of Iowa, N.A., 2001 WL 246386, *2 (Iowa Ct.App. March 14, 2001); Gallagher, Langlas & Gallagher v. Burco, 587 N.W.2d 615, 617 (Iowa Ct.App.1998). However, the party asserting an oral contract must still generate a genuine issue of material fact on these issues to preclude summary judgment in the opposing party’s favor. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (if a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law”); In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d at 1492.

a. Existence and terms of an oral contract

“In order to be bound, the contracting parties must manifest a mutual assent to the terms of the contract, and this assent usually is given through the offer and acceptance.” Kristerin Dev. Co. v. Granson Inv., 394 N.W.2d 325, 331 (Iowa 1996) (citing Hayne v. Cook, 252 Iowa 1012, 1021, 109 N.W.2d 188, 192 (1961)); see also In re: Guardianship and Conservatorship of Price, 571 N.W.2d 214, 216 (Iowa Ct.App.1997) (“The only required elements [sic] of a binding contract are [sic] mutual assent to the contractual terms manifested by an offer and acceptance.”). However, in order for a trier of fact to find that an oral contract existed, there must also be sufficient evidence of its terms to ascertain the duties and conditions established by the contract. See Audus, 554 N.W.2d at 871; Burke v. Hawkeye Nat’l Life Ins. Co., 474 N.W.2d 110, 113 (Iowa 1991); Warfield, 2001 WL 246386 at *2; Burco, 587 N.W.2d at 617. In other words, for an oral contract to be found and to be held enforceable, the terms must be so definitely fixed that nothing remained except to reduce the terms to writing. Price, 571 N.W.2d at 216. Courts cannot find a contract where none exists. Audus, 554 N.W.2d at 872; In re Estate of Ohrt, 516 N.W.2d 896, 901 (Iowa 1994); Warfield, 2001 WL 246386 at *2. Indeed, when the terms are not definite, courts are reluctant to impose even reasonable terms on contracting parties. Burco, 587 N.W.2d at 617 (citing Bowser v. PMX Indus., Inc., 545 N.W.2d 898, 900 (Iowa Ct.App.1996)). However, where a contract does exist, courts are reluctant to hold that it is too uncertain to be enforceable. Audus, 554 N.W.2d at 872; Ohrt, 516 N.W.2d at 901; Warfield, 2001 WL 246386 at *2; Burco, 587 N.W.2d at 617.

6. Negotiations and reduction to writing

An oral agreement may be enforceable, even if the parties intended to reduce it to writing, but never did so, if two conditions are met: (1) the agreement is complete as to its terms; and (2) the agreement is finally agreed to. See Elkader Coop. Co. v. Matt, 204 N.W.2d 873, 875 (Iowa 1973); see also Severson v. Elberon Elevator, Inc., 250 N.W.2d 417, 420 (Iowa 1977); Purina Mills, Inc. v. Bushman, 2000 WL 1157836, *5 (Iowa Ct.App. Aug.16, 2000); Davis v. Roberts, 563 N.W.2d 16, 22 (Iowa Ct.App.1997); Employee Benefits Plus, Inc. v. Des Moines Gen. Hosp., 535 N.W.2d 149, 153-54 (Iowa Ct.App.1995). This is so, the Iowa Court of Appeals has explained, because in such circumstances, “[a]ny written version of the agreement would have merely served as an expression of an agreement already made.” Davis, 563 N.W.2d at 22; Employee Benefits Plus, Inc., 535 N.W.2d at 154. On the other hand, as the Iowa Supreme Court explained in Faught v. Budlong, 540 N.W.2d 33 (Iowa 1995), and several prior decisions, there are circumstances in which no obligation will exist until the whole agreement of the parties has been reduced to written form. See Faught, 540 N.W.2d at 35-36.

These apparently contradictory possibilities frame the dispute in this case. Sehaller contends that the terms for the purchase of its DBS assets were complete and finally agreed to orally, so that “[a]ny written version of the agreement would have merely served as an expression of an agreement already made.” Davis, 563 N.W.2d at 22; Employee Benefits Plus, Inc., 535 N.W.2d at 154. On the other hand, Golden Sky contends that the undisputed facts in the record demonstrate that, in the circumstances of this case, no obligation could exist until the whole agreement of the parties had been reduced to written form and the written agreement had been signed by the parties, which never happened. See Faught, 540 N.W.2d at 35-36. Therefore, the court must first focus on the question of when negotiations can ripen into an oral contract, even where a written agreement is contemplated, but never executed.

i. The Faught decision. In Faught, the Iowa Supreme Court examined this question in a case involving extensive negotiations to settle a mortgage dispute. Faught, 540 N.W.2d at 33. A jury returned a verdict finding an enforceable oral contract and breach of that contract, but the district court granted judgment notwithstanding the verdict. Id. at 35. The Iowa Supreme Court looked to comments to Section 27 of the Restatement (Seoond) of Contracts for guidance on the question of whether negotiations had ripened into an oral contract:

Comments a and b to section 27 of the Restatement (Second) of Contracts pertinently provide:

a. Parties who plan to make a final written instrument as the expression of their contract necessarily discuss the proposed terms of the contract before they enter into it and often, before the final writing is made, agree upon all the terms which they plan to incorporate therein. This they may do orally or by exchange of several writings. It is possible thus to make a contract the terms of which include an obligation to execute subsequently a final writing which shall contain certain provisions. If parties have definitely agreed that they will do so, and that the final writing shall contain these provisions and no others, they have then concluded the contract.

b. On the other hand, if either party knows or has reason to know that the other party regards the agreement as incomplete and intends that no obligation shall exist until other terms are assented to or until the whole has been reduced to another written form, the preliminary negotiations and agreements do not constitute a contract.

See also Continental Labs., Inc. v. Scott Paper Co., 759 F.Supp. 538, 540 (S.D.Iowa 1990) (citing with approval comment b).

This court has embraced the principles enunciated in both comments:

It is generally held an oral agreement may be enforceable, even though the parties contemplate that it be reduced to writing and signed, if it is complete as to its terms and has been finally agreed to. Under such circumstances the writing is merely an expression of a contract already made. On the other hand, the parties may intend that obligation should arise only upon the signing of a written instrument embodying the terms they have tentatively agreed to.

Elkader Coop. Co. v. Matt, 204 N.W.2d 873, 875 (Iowa 1973) (citations omitted).

The Restatement also sets out the factors considered in determining whether a binding agreement has been reached:

Among the circumstances which may be helpful in determining whether a contract has been concluded are the following: the extent to which express agreement has been reached on all the terms to be included, whether the contract is of a type usually put in writing, whether it needs a formal writing for its full expression, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether a standard form of contract is widely used in similar transactions, and whether either party takes any action in preparation for performance during the negotiations. Such circumstances may be shown by oral testimony or by correspondence or other preliminary or partially complete writings.

Restatement (Second) of Contracts § 27 cmt. c (1979). See also Continental Labs., Inc., 759 F.Supp. at 541-42 (citing factors in comment c and finding as a matter of law based on these factors that defendant intended to be bound only by a written agreement signed by both parties; court therefore concluded no binding agreement ever existed and sustained defendant’s motion for summary judgment); Severson v. Elberon Elevator, Inc., 250 N.W.2d 417, 421 (Iowa 1977) (citing most of the same factors).

Faught, 540 N.W.2d at 35-36.

ii. Faught’s precursors. As the Iowa Supreme Court indicated in Faught, the Iowa Supreme Court had applied principles drawn from Comments a and b to Section 27 of the Restatement (Second) of Contracts in some of its prior cases, specifically, Severson v. Elberon Elevator, Inc., 250 N.W.2d 417 (Iowa 1977), and Elkader Coop. Co. v. Matt, 204 N.W.2d 873 (Iowa 1973). Additionally, this court finds that the Iowa Court of Appeals applied related principles, drawn from Section 26 of the Restatement (Second) of Contracts, in Desy v. Rhue, 462 N.W.2d 742 (Iowa Ct.App.1990). These decisions therefore warrant some further consideration.

In Matt, the earliest of these decisions, the Iowa Supreme Court considered whether an enforceable oral agreement for the sale and purchase of corn had been reached. See Matt, 204 N.W.2d at 874. Although the Iowa Supreme Court held that the appellant was entitled to a new trial, on the ground that the jury had not been properly instructed, the court rejected the appellant’s argument for a directed verdict that no enforceable oral agreement had been made, reasoning as follows:

It is generally held an oral agreement may be enforceable, even though the parties contemplate that it be reduced to writing and signed, if it is complete as to its terms and has been finally agreed to. Under such circumstances the writing is merely an expression of a contract already made. On the other hand, the parties may intend that obligation should arise only upon the signing of a written instrument embodying the terms they have tentatively agreed to. Alpen v. Chapman, 179 N.W.2d 585, 588, 589 (Iowa 1970); Luse v. Waco Community School District, 258 Iowa 1087, 1092, 141 N.W.2d 607, 610 (1966); Restatement, Contracts, section 26 (1932); 17 Am. Jur.2d, Contracts, sections 28, 29 (1964); 17 C.J.S. Contracts § 49 (1963).

Matt, 204 N.W.2d at 875. Finding that “[tjhe intention of the parties is decisive on this issue,” and that “[t]his fact question is dependent upon all the circumstances present in the particular case,” the court held that a jury question was presented on whether an oral agreement was to bind the parties. Id.

In Severson, a case which, like the one presently before this court, involved the purchase of assets of a business, the Iowa Supreme Court stated the rule in similar terms:

When the terms of an agreement are definitely fixed so that nothing remains except to reduce them to writing, an oral contract will be upheld unless the parties intended not to be bound until the agreement was reduced to writing. Marti v. Ludeking, 193 Iowa 500, 503-504, 185 N.W. 476, 477-478 (1921). The terms are sufficiently definite if the court can determine with reasonable certainty the duty of each party and the conditions relative to performance. Janssen v. North Iowa Conference Pensions, Inc., 166 N.W.2d 901, 907 (Iowa 1969).

íj: % ‡ # *

Factors to be considered in seeking to ascertain whether the parties intended to be bound prior to execution of a written document include whether the contract is of a class usually found to be in writing, whether it is of a type needing a formal writing for its full expression, whether it has few or many details, whether the amount is large or small, whether the contract is common or unusual, whether all details have been agreed upon or some remain unresolved, and whether the negotiations show a writing was discussed or contemplated. Emmons v. Ingebretson, 279 F.Supp. 558, 572 (N.D.Iowa 1968).

Severson, 250 N.W.2d at 420-21 (emphasis added); see also Bradley v. West Sioux Bd. of Educ., 510 N.W.2d 881, 884 (Iowa 1994) (citing Severson for the statement of the rule and pertinent factors); Employee Benefits Plus, Inc., 535 N.W.2d at 154 (citing comparable factors for determining whether the parties intended an oral agreement to be binding prior to the execution of a written document drawn from Severson, 250 N.W.2d at 421); H & W Motor Express v. Christ, 516 N.W.2d 912, 914 (Iowa Ct.App.1994) (citing Severson, 250 N.W.2d at 420, for the statement of the rule). The factors identified by the court in Severson match those now stated in Comment c to Restatement (Seoond) of ContRacts § 27. Applying these factors, the court in Severson concluded that the parties had reached an oral contract for the sale and purchase of the grain elevator in question. Id.

The Iowa Court of Appeals recognized a related principle drawn from present Section 26 of the Restatement (Second) of Contracts:

Restatement (Second) of Contracts § 26 (1979), states a principle that we believe is well recognized in Iowa law:

A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person does not intend to conclude a bargain until he has made a further manifestation of assent.

In this case, it could not be clearer than is expressed in the proposed purchase agreement and by the conduct of the parties to the proposed contract that the parties did not intend to, or believe that they would, be bound until appellant had signed and the dealer had accepted.

Desy v. Rhue, 462 N.W.2d 742, 746 (Iowa Ct.App.1990) (emphasis added). The facts making such a conclusion so clear included language in the purchase agreement stating “in bold capital letters that ‘THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY THE SELLING DEALER OR HIS AUTHORIZED REPRESENTATIVE.’ ” Id. In a footnote, the Iowa Court of Appeals added the following observation:

Were we to find that there had been agreement and that title had passed under these facts, we would be imposing much too heavy a burden on anyone who proposes to be bound by a contract. It is one thing for an agreement between two equally informed parties working together on preliminary matters to ripen into an enforceable contract, for which Appellees cite Severson v. Elberon Elevator, Inc., 250 N.W.2d 417, 420 (Iowa 1977); it is quite another to impose a contract when the supposed offeror has not seen the offer and both parties and the agreement itself indicate that there mil be no binding contract until it is signed and finally accepted.

Desy, 462 N.W.2d at 746 n. 2 (emphasis added).

Thus, these Iowa decisions considering the principles articulated in sections 26 and 27 of the Restatement (Second) of Contracts demonstrate that “[w]hether preliminary negotiations actually ripened into an oral contract depends on the intention of the parties as gleaned from the facts of the case.” H & W Motor Express, 516 N.W.2d at 914 (citing Severson, 250 N.W.2d at 421); Desy, 462 N.W.2d at 746 (examining the language of the purchase agreement and the conduct of the parties).

2. Did these negotiations ripen into an oral contract?

Not surprisingly, in this case, Schaller contends that negotiations had ripened into an enforceable oral contract, as contemplated in comment a to Restatement (Second) of Contracts § 27, while Golden Sky contends that the undisputed facts demonstrate that a writing was required to conclude a contract for the purchase and sale of Schaller’s DBS assets, as contemplated in comment b to § 27. To determine whether or not summary judgment is appropriate, or a fact question is instead presented, on the issue of whether this is a “Comment a case” or a “Comment b case,” the court turns to an examination of the record.

a. Golden Sky’s intent not to be bound except by a written agreement

The circumstances here are similar to those presented in Desy v. Rhue, 462 N.W.2d 742 (Iowa Ct.App.1990), in that “it could not be clearer than is expressed in [Golden Sky’s written offers] and the conduct of the parties to the proposed contract that the parties did not intend to, or believe that they would, be bound until [Golden Sky] signed and [Schaller] accepted.” Desy, 462 N.W.2d at 746. Indeed, Golden Sky’s express statements that it would not be bound in the absence of a written agreement are even more categorical than the language of the purchase agreement in Desy. In Desy, the purchase agreement provided that “THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY THE SELLING DEALER OR HIS AUTHORIZED REPRESENTATIVE.” Id. Here, more than written “acceptance” was required.

Instead, Golden Sky’s two letters of interest, the first dated March 9, 1999, and the second dated May 26, 1999, both expressly state that the price offered is “conditional upon [a specified number of subscribers at closing] and that the parties negotiate and execute a mutually acceptable purchase agreement which would contain representations and warranties standard in the industry, and is subject to and conditioned upon obtaining the necessary required consents to a transaction, including but not limited to approval of NRTC, DIRECTV, and GSS’ Board of Directors.” See Appendix II — Document Exhibits In Support Of Defendants’ Summary Judgment Motion (Defendants’ Appendix II), Exhibits 5 (March 9, 1999, Initial Letter of Interest) at 1 (Bates 0001382) (emphasis added) & 8 (May 26, Second Letter of Interest) at 1 (Bates 00180); see also Defendants’ Statement of Undisputed Facts, ¶ 19 & ¶ 24. Both also expressly state that “[t]here are many terms and conditions for sale which need to be agreed upon to finalize an agreement” and that “[y]ou should understand that this letter is not and is not intended to be, construed or relied upon as a commitment on the part of GSS. Any commitment which we may subsequently determine to extend would be pursuant to the definitive documentation referred to above.” See Defendants’ Appendix, Exhibits 5 (March 9, 1999, Initial Letter of Interest) at 2 (Bates 0001388) (emphasis added) & 8 (May 26, Second Letter of Interest) at 2 (Bates 001581). Also, ¶ 2 of the Golden Sky’s July 23,1999, Letter of Intent indicates the parties’ intention to “begin immediate, good faith negotiation between them of an ‘Asset Purchase Agreement,’ which will embody the terms and conditions contained herein and such other conditions, covenants, representations and warranties which may be agreed upon between the parties and as are customary in acquisitions of this type.” See Defendants’ Appendix II, Exhibit 16 (emphasis added); see also Defendants’ Statement of Undisputed Facts, ¶ 91. Finally, the draft letter of September 3, 1999, which was intended to state Golden Sky’s understanding of the agreement in principle reached during the telephone conference that day, stated that the letter was “not to be construed as an offer from GSS but is instead intended to be a nonbinding expression of the parties’ intentions with respect to entering into an asset purchase agreement memorializing the above-referenced transaction.” Defendants’ Appendix II, Exhibit 84 (Draft Letter of September 3, 1999) at 2 (emphasis added); see also Defendants’ Statement of Undisputed Facts, ¶ 165. These disclaimers make it abundantly clear that Golden Sky had no intention to be bound in the absence of a written agreement.

Moreover, Golden Sky contends that Schaller’s representatives also understood that a written, executed agreement was required to complete a contract between the parties. Paragraphs 54 through 56 of Defendants’ Statement of Undisputed Facts, which Schaller has admitted, see Plaintiffs Response To Defendants’ Statement of Undisputed Facts, ¶¶ 54-56, state the following:

54.Jensen [who was counsel for Schaller during negotiations] thinks that he asked for a standard form written purchase agreement from Golden Sky [which he received June 28,1999] “to get some indication of what Golden Sky typically puts into its agreements so we had some indication beforehand whether there was some things that were going to present problems for Schaller, or issues, and I felt that the easiest way to get to that was to, since they do a lot of these transactions, to get a standard type agreement, understanding that, obviously, it was going to be negotiated.... ” Ex. H, Jensen [Deposition] [p.] 43 [i] 9[to][p.] 44 [£] 23.

55. Jensen anticipated that the standard form agreement would be the beginning point of negotiations over the contract documents that would effect the sale, and then he would have discussions with Golden Sky concerning the nitty gritty details of those written documents. Ex. H, Jensen [Deposition] [p.] 44 [t] 24[to] [p.] 45 [(.] 7.

56. After receiving Ex. 9, Jensen understood that from that point forward, he would be negotiating with someone from Golden Sky about terms of a written asset purchase agreement. Ex. H, Jensen [Deposition] [p.] 40 [11} 22-25.

Defendants’ Statement of Undisputed Facts, ¶¶ 54-56 (emphasis added). Thus, there is no genuine issue of material fact that Schaller itself understood that Golden Sky expected to be bound only upon the signing of a written asset purchase agreement.

b. Manifestations of assent to an oral contract

Schaller nevertheless argues that there are genuine issues of material fact as to Golden Sky’s intent to be bound only by a written agreement that are generated by evidence that Golden Sky’s representatives manifested assent to an oral agreement for the purchase of Schaller’s DBS assets. The court will consider whether any such “manifestations of assent” generate genuine issues of material fact on the question of Golden Sky’s intent.

i. Agreement to the “essential term” of price. First, recognizing that a condition of a “Comment a case” is that the parties “agree upon all the terms which they plan to incorporate” in their agreement, see Restatement (Seoond) of CONTRACTS § 27, cmt. a, Schaller contends that the parties had agreed to the “essential term” of the contract, which Schaller contends was the price per subscriber. Schaller acknowledges that “[negotiations were initiated in earnest after Golden Sky submitted an offer to buy Schaller’s DBS territory on May 26, 1999 at a rate of $2,700 per subscriber for 4,100 subscribers,” citing the May 26, 1999, Second Letter of Interest, cited above. See Plaintiffs Amended And Substituted Resistance To Motion For Summary Judgment (Plaintiffs Amended Resistance) at 7 (citing Plaintiffs Exhibits In Support Of Resistance To Motion For Summary Judgment (Plaintiffs Exhibits), Exhibit 8, which is identical to Defendant’s Appendix II, Exhibit 8). However, Schaller contends that, on June 30,1999, the parties agreed on the essential pricing structure for the deal as requiring Schaller to provide 5,000 subscribers to Golden Sky at the time of closing at $2,700 per subscriber, for a total purchase price of $13.5 million, with reductions in the purchase price of $2,700 for each subscriber short of 5,000 provided at closing. Schaller asserts further that these pricing terms never changed subsequently. In support of its contention that the price term remained as agreed in June, Schaller cites deposition testimony by Steven Reimers, its President, see Plaintiffs Exhibits at 567 (Reimers Deposition, p. 82, ll. 3-72); deposition testimony of Steven Jensen, who negotiated on Schal-ler’s behalf, see Plaintiffs Exhibits' at 547-58 (p. 73, l. 9 to p. 74, l. 8); the September 3, 1999, draft letter by Golden Sky outlining the agreement in principle, as Golden Sky understood it, following the September 3, 1999, telephone conference, see Plaintiffs Exhibits at 20-21; see also Defendants’ Appendix ,11, Exhibit 84 (Draft Letter of September 3, 1999); and the September 21, 1999, Draft Asset Purchase Agreement, see Plaintiffs Exhibits at 22-55.

Schaller relies heavily on the decision of the Iowa Court of Appeals in In re Guardianship and Conservatorship of Price, 571 N.W.2d 214 (Iowa Ct.App.1997), for the proposition that the oral agreement it contends existed was sufficiently definite to be enforceable, because the “essential” contract term, the price Golden Sky was to pay Schaller per subscriber, did not vary over the last several months of the negotiations. In Price, the court concluded that the parties had agreed to the “essential term” of the agreement where the evidence was uncontroverted that one party accepted payment of $400 per week to provide care and services for his parents, notwithstanding that party’s contention that many terms of the caretaking agreement were left undecided. See Price, 571 N.W.2d at 216. The court reasoned as follows:

While Steve argues many terms of the caretaking arrangement were left undecided, such as whether he would work as an independent contractor, the level of care needed, whether there would an be offset for rent, compensation for maintenance work, or determination of vacation time, “[a]n agreement need not contain definitely and specifically every fact in detail to which the parties may be agreeing.” 17A Am.Jur.2d Contracts § 197 (1991). The agreement need only be “certain and unequivocal in its essential terms” and “absolute certainty is not required; only reasonable certainty is necessary.” Id. § 196 (emphasis added). The essential terms of $400 per week, in exchange for caretaking services, comprised the definite and essential term of the agreement. Steve cannot argue the level of care warranted by his parents was a term so vague that it could defeat the contract. From the onset, as evidenced by Colleen Eflin’s September 1993 letter, the health care needs of the parents should have been apparent. Steve could have refused to begin or could have at any time discontinued the care by terminating the agreement. The parties’ respective duties could be determined by a court with reasonable certainty. See id. § 196 (“[T]he subject matter of the agreement must be expressed in such terms that it can be ascertained with reasonable certainty ... an agreement to be binding must be sufficiently definite to enable the court to determine its exact meaning and fix definitely the legal liability of the parties.”).

Price, 571 N.W.2d at 216-17 (emphasis added).

Although Price may suggest a principle favorable to Schaller — that price may be the only essential term of a contract — the decision is inapplicable here for at least two reasons. First, Price involved a services contract, where the terms could be reasonably determined, and could be clarified during the course of performance, see id. (if the terms of the contract were unclear, “Steve could have refused to begin or could have at any time discontinued the care by terminating the agreement”), not a complex contract for the one-time sale and purchase of assets of a going business. Second, in Price, a separate document, the prior caregiver’s letter about the health care needs of the parents, should have made the duties of the party challenging the contract for indefiniteness readily apparent, see id., but there is no such document in this ease making it readily apparent what was involved in the transfer of Schaller’s DBS assets. Moreover, each of Golden Sky’s disclaimers identified myriad other terms that Golden Sky regarded as essential to the deal and required reduction of a deal incorporating agreement on all of these terms to writing. Thus, no reasonable jury could find that the oral agreement on which Schaller relies came into being on the basis that the only “essential term” of the contract was price, which had been agreed upon between the parties.

ii. Agreement on all terms. Similarly unavailing is Schaller’s contention that the parties had agreed orally to all terms of the agreement, as embodied in the September 21, 1999, Draft Asset Purchase Agreement. See Restatement (Seoond) of ContRacts § 27, emt. a (the parties may reach an enforceable oral agreement, notwithstanding their intent to reduce the agreement to writing, if they “agree upon all the terms which they plan to incorporate” into their agreement) (emphasis added). Even if the September 21, 1999, Draft Asset Purchase Agreement included all of the terms of the transaction and the parties had agreed that all of those terms were acceptable — which Golden Sky disputes — there is no indication that Golden Sky’s President, Rodney Weary, had seen that version of the Asset Purchase Agreement, and the record is undisputed that only Weary had the authority to bind Golden Sky to the transaction. Cf. Desy, 462 N.W.2d at 746 n. 2 (the offeror had not seen the offer). Thus, it would be inappropriate to impose a contract when the supposed offeror has not seen the version of the agreement that the other party asserts embodies all terms of the agreement and the letters making initial offers and expressing intent to enter into the deal expressly state that there will be no deal until a written agreement is executed. Cf. id. (it would be wrong to “impose a contract when the supposed offeror has not seen the offer and both parties and the agreement itself indicate that there will be no binding contract until it is signed and finally accepted”); see also Flanagan v. Consolidated Nutrition, L.C., 627 N.W.2d 573 (Iowa Ct.App.2001) (holding that the conduct of the parties demonstrated that they intended that they would not have a binding contract — for the sale and purchase of weaned pigs — until both had signed a written agreement that had been processed and approved by the defendant’s personnel, because, after the plaintiff signed a proposed agreement, the parties exchanged further drafts with different terms).

iii. Representations that the only contingency was board approval. Schaller contends that on several occasions, Golden Sky’s representatives suggested to Schaller that the only contingency in the transaction was that Golden Sky’s board approve the deal, and that the board gave such approval on August 26, 1999. Jensen testified in deposition that Jo Ellen Linn, Golden Sky’s General Counsel, who participated in the negotiations on Golden Sky’s behalf, stated during a June 30, 1999, meeting that the “transaction” was “subject to board of director’s approval,” see Plaintiffs Exhibits at 552 (Jensen Deposition at 140, ll. 12-20); that Linn represented during the August 25, 1999, meeting in Kansas City that “Once the board approves it, we’re ready to go,” see Plaintiffs Exhibits at 553 (Jensen Deposition at p. 143, ll. 13-23 & p. 144, ll. 9-18); and that after board approval was obtained, Linn or Foster left Jensen a voice mail congratulating him on the board’s approval, see Plaintiffs Exhibit at 554 (Jensen Deposition at p. 148, ll. 10-20), which Schaller asserts indicates Golden Sky’s recognition that the only contingency on the deal had been satisfied.

However, the court concludes that no reasonable inference arises that board approval was the only contingency for an enforceable agreement, when, pursuant to ¶ 18 of the July 23, 1999, Letter of Intent that Golden Sky sent Schaller, lack of board approval was only one of three contingencies that could lead to failure of the deal — the other two being “written consent” by the parties to terminate the transaction and failure to enter into “the Asset Purchase Agreement contemplated” by the parties by the deadline specified or by some agreed, extended deadline. See Defendants’ Appendix II, Exhibit 16. Also, as explained above, pursuant to ¶ 2 of that same Letter of Intent, the parties agreed to “begin immediate, good faith negotiation between them of an ‘Asset Purchase Agreement,’ which will embody the terms and conditions contained herein” and additional terms, see id., thus expressly stating that there were other “contingencies” besides board approval. Moreover, the March 9, 1999, and May 26, 1999, letters of interest identified numerous contingencies in addition to board approval, including “obtaining the necessary required consents to a transaction, including but not limited to approval of NRTC, DIRECTV, and GSS’ Board of Directors.” See Defendants’ Appendix II, Exhibits 5 & 8. No reasonable jury could conclude, in light of this evidence, that the only contingency for the transaction was approval by Golden Sky’s board of directors.

iv. Other conduct suggesting an agreement had been reached. Similarly unavailing are Sehaller’s attempts to generate a genuine issue of material fact that Golden Sky manifested assent to be bound by an oral agreement based on various conduct of Golden Sky’s representatives. Schaller relies on Ed Foster’s statements, following board approval of the transaction, that no signed, written agreement was required for purposes of securing bank financing, only a draft agreement setting forth the basic elements of the parties’ agreement, as suggesting that Golden Sky had assented to an oral agreement in the absence of a writing. See Plaintiffs Exhibits at 554-55 (Jensen Deposition at p. 149, l. 1 to p. 150 l. 5). Simply put, however, no reasonable inference about what Golden SJcy required to consummate the transaction arises from what a third party, such as a bank financing the transaction, required as documentation on which to prepare financing. Moreover, Schaller has pointed to nothing in the record indicating that the bank would ultimately have provided financing in the absence of a signed written agreement closing the transaction. Banks routinely prepare financing documents in advance of “closing” on the underlying transaction.

Nor do internal documents, prepared by Golden Sky in August of 1999, indicating that the transaction with Schaller was categorized under “BIDS ACCEPTED” and that the transaction was rated as a “100% Probability,” manifest assent to be bound by an oral agreement or indicate, as Schaller argues, that Golden Sky believed a deal had already been reached. See Plaintiffs Exhibits at 619. Rather, the only reasonable inference arising from such documents is an inference that Golden Sky understood Schaller had accepted its “bid” at $2,700 per subscriber and that Golden Sky anticipated successful negotiations of all terms of the transaction to close the deal, as specified in its letters of interest and Letter of Intent. Similarly, email exchanges between Jo Ellen Linn and LaQuita Allen dated August 12, 1999, indicating that these two representatives of Golden Sky were making hotel and plane reservations for a trip to Hawaii to close the Schaller transaction, see Plaintiffs Exhibits at 621-22, support no reasonable inference beyond a high degree of belief by these persons that the Schaller transaction would ultimately close, not an inference that these persons believed that Golden Sky had reached or assented to an enforceable oral contract.

v. Weary’s statements. Finally, Schaller relies on representations attributed to Rodney Weary, President and CEO of Golden Sky, during the September 3, 1999, conference call to the effect that “We’re going to keep this agreement,” “We’re going to buy your assets,” and “I’m a man of my word and we will pay the price agreed. We intend to go forward with your transaction.” See Plaintiffs Exhibits at 555 (Jensen Deposition at p. 152, ll. 2-8). Schaller contends that Weary’s statements manifest — if not expressly state — an intention to be bound to the terms agreed upon.

Assuming that Weary made the statements — and Golden Sky disputes that he did, compare Plaintiffs Statement Of Additional Material Facts In Opposition To Motion For Summary Judgment, ¶ 15, with Defendants’ Supplemental Reply To Plaintiffs Supplemental Statement Of Additional Facts, ¶ 15 — the statements still do not give rise to a genuine issue of material fact that Golden Sky intended to be bound in the absence of a signed written agreement, again even assuming that all terms had been agreed to during the course of the September 3, 1999, meeting, which Golden Sky also disputes. This is so, because, as explained above, the statements were made in the context of express statements in the first and second letters of interest and the Letter of Intent that Golden Sky would not be bound in the absence of a written agreement. Nothing in Weary’s statement indicates an intent to waive the requirement of a written agreement previously expressly imposed upon Golden Sky’s offers and negotiations.

The present circumstances are also distinguishable from those in Severson in which the Iowa Supreme Court held that an enforceable oral contract had been reached for the purchase of the assets of a business, even though Severson also involve