Highland Capital Management, L.P. v. Bank of America, N.A.

JERRY E. SMITH, Circuit Judge: *

Highland Capital Management, L.P. (“Highland”), and Bank of America entered negotiations for the bank to sell to Highland a $15.5 million loan (the “Regency Loan”) at 93.5% of par value. On December 3, 2009, Highland’s representative, Daugherty, and the bank’s representative, Maidman, had a telephone call in which they agreed to that price. Maidman, however, stated during that call and in a subsequent email that the trade was “subject to appropriate consents and documentation.”

Highland sued to enforce the putative contract. This dispute centers on whether an…