in Re Talmer Bancorp Shareholder Litigation ( 2019 )


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  •          If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
    revision until final publication in the Michigan Appeals Reports.
    STATE OF MICHIGAN
    COURT OF APPEALS
    KEVIN NICHOLL, CITY OF LIVONIA                                 UNPUBLISHED
    EMPLOYEES RETIREMENT SYSTEM, and                               October 17, 2019
    REGINA GERTIL LEE,
    Plaintiffs-Appellants,
    v                                                              No. 344000
    Oakland Circuit Court
    GARY TORGOW, DAVID T. PROVOST, GARY                            LC No. 2017-160058-CB
    S. COLLINS, MAX A. BERLIN, JENNIFER M.
    GRANHOLM, PAUL E. HODGES III, RONALD
    A. KLEIN, BARBARA J. MAHONE, ROBERT
    H. NAFTALY, ALBERT W. PAPA, THOMAS L.
    SCHELLENBERG, ARTHUR A. WEISS, and
    KEEFE BROYETTE & WOODS, INC.,
    Defendants-Appellees.
    In re TALMER BANCORP SHAREHOLDER
    LITIGATION.
    CITY OF LIVONIA EMPLOYEES
    RETIREMENT SYSTEM and REGINA GERTIL
    LEE,
    Plaintiffs-Appellants,
    v                                                              No. 344009
    Oakland Circuit Court
    CHEMICAL FINANCIAL CORPORATION and                             LC Nos. 2016-151641-CB;
    TALMER BANCORP, INC.,                                                  2016-151642-CB
    Defendants,
    and
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    GARY TORGOW, DAVID T. PROVOST, GARY
    S. COLLINS, MAX A. BERLIN, JENNIFER M.
    GRANHOLM, PAUL E. HODGES III, RONALD
    A. KLEIN, BARBARA J. MAHONE, ROBERT
    H. NAFTALY, ALBERT W. PAPA, THOMAS L.
    SCHELLENBERG, ARTHUR A. WEISS, and
    KEEFE BROYETTE & WOODS, INC.,
    Defendants-Appellees.
    Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.
    PER CURIAM.
    In these consolidated cases, plaintiffs challenge the trial court’s orders granting
    defendants summary disposition pursuant to MCR 2.116(C)(6) (prior action between the same
    parties) and (10) (no genuine issue of material fact). We affirm.
    I. BASIC FACTS
    Plaintiffs are shareholders of Talmer Bancorp, Inc. (Talmer). The individual defendants
    (hereafter the “Talmer defendants”) are members of Talmer’s Board of Directors (the “Board”).
    Defendant Keefe Broyette & Woods, Inc. (KBW), is an investment bank and advisor. Before
    2015, Talmer’s growth strategy involved acquisitions of other regional banking institutions. In
    2015, the Board contemplated entering into a merger or acquisition transaction with another
    regional banking institution. Talmer approached Chemical Financial Corporation (Chemical)
    and five other companies, which we shall refer to as Companies A, B, C, D, and E to preserve
    confidentiality. Chemical and Company E were the only companies to express an interest in a
    transaction with Talmer. In July 2015, the Board entered into an agreement with KBW whereby
    KBW would represent Talmer in negotiations with Company E. KBW had also made contacts
    with Chemical in 2015 regarding a potential merger with Talmer. Company E withdrew from
    negotiations in July 2015.
    In December 2015, Talmer entered into an agreement with KBW for KBW to represent
    Talmer in negotiations with Chemical. On January 25, 2016, Talmer and Chemical entered into
    a merger agreement. The Talmer Board unanimously approved the merger. A 99% majority of
    Talmer shareholders also approved the merger. Chemical compensated Talmer shareholders
    with consideration of 90% stock and 10 percent cash. Chemical also offered 25% cash for
    outstanding stock options. Defendants Gary Torgow and David Provost were offered positions,
    respectively, as Chairman and Vice Chairman of Chemical’s Board of Directors.
    In 2016, plaintiffs Regina Lee and the city of Livonia Employees Retirement System
    (“CLERS”) initiated separate actions against the Talmer defendants for breach of fiduciary duty
    and against KBW for aiding and abetting the Talmer defendants’ breach of fiduciary duty. These
    -2-
    two actions were consolidated in the trial court (hereafter referred to as the “2016 action” or
    “2016 litigation”). In 2017, plaintiff Kevin Nicholl initiated a separate action against the same
    defendants (hereafter the “2017 action” or “2017 litigation”), asserting the same claims as
    alleged in the 2016 action. An amended complaint added Regina Lee and CLERS as plaintiffs to
    the 2017 action. The trial court denied plaintiffs’ motion to consolidate the 2016 and 2017
    actions.
    In May 2018, the trial court dismissed Lee and CLERS as plaintiffs in the 2017 action
    pursuant to MCR 2.116(C)(6) on the ground that they were already engaged in litigation arising
    from the same transaction. The court also granted summary disposition for all defendants in the
    2017 action pursuant to MCR 2.116(C)(10). Plaintiffs appeal this order as of right in Docket No.
    344000. In addition, the trial court issued separate orders granting summary disposition for the
    Talmer defendants and for defendant KBW in the 2016 action, both pursuant to MCR
    2.116(C)(10). Plaintiffs Lee and CLERS appeal this order as of right in Docket No. 344009.
    II. BREACH OF FIDUCIARY DUTY
    Plaintiffs allege that the Talmer defendants breached their fiduciary duty to shareholders
    by pursuing the transaction with Chemical against the best interests of the Talmer shareholders,
    and for the benefit of Provost and Torgow. They further assert that KBW aided and abetted the
    breach of fiduciary duty in furtherance of its own advantageous relationship with Chemical.
    Plaintiffs contend that KBW failed to disclose the extent of its contacts with Chemical and its
    potential conflicts of interest to the full Board and to shareholders. Plaintiffs also submit that a
    discounted cash flow (“DCF”)1 analysis that KBW prepared for presentation to the Talmer Board
    and shareholders falsely depressed the value of Talmer’s future income by assuming that Talmer
    would abandon its successful strategy of growing through future acquisitions. Plaintiffs assert
    that KBW concealed from Talmer shareholders a DCF analysis that projected future growth
    through acquisitions.
    III. SUMMARY DISPOSITION FOR THE TALMER DEFENDANTS
    In both actions, the trial court granted summary disposition in favor of the Talmer
    defendants and KBW pursuant to MCR 2.116(C)(10). A motion for summary disposition
    pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodring v
    Phoenix Ins Co, 
    325 Mich. App. 108
    , 113; 923 NW2d 607 (2018). “When reviewing a motion
    under MCR 2.116(C)(10), this Court must consider the pleadings, affidavits, depositions,
    admissions, and other documentary evidence in favor of the party opposing the motion.” Twp of
    Williamstown v Sandalwood Ranch, LLC, 
    325 Mich. App. 541
    , 547 n 4; 927 NW2d 262 (2018)
    (citation and quotation marks omitted). “The motion is properly granted if (1) there is no
    genuine issue related to any material fact and (2) the moving party is entitled to judgment as a
    matter of law.” 
    Id. “A genuine
    issue of material fact exists when the record, giving the benefit
    1
    A discounted cash flow analysis determines the value of a business by estimating its future cash
    flow, discounted to present value.
    -3-
    of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds
    might differ.” 
    Id. (citation and
    quotation marks omitted).
    The trial court determined that the Talmer defendants were entitled to summary
    disposition under MCR 2.116(C)(10) because MCL 450.1545a precluded plaintiffs from
    maintaining their actions. MCL 450.1545a provides:
    (1) A transaction in which a director or officer is determined to have an
    interest shall not, because of the interest, be enjoined, set aside, or give rise to an
    award of damages or other sanctions, in a proceeding by a shareholder or by or in
    the right of the corporation, if the person interested in the transaction establishes
    any of the following:
    (a) The transaction was fair to the corporation at the time entered into.
    (b) The material facts of the transaction and the director’s or officer’s
    interest were disclosed or known to the board, a committee of the board, or the
    independent director or directors, and the board, committee, or independent
    director or directors authorized, approved, or ratified the transaction.
    (c) The material facts of the transaction and the director’s or officer’s
    interest were disclosed or known to the shareholders entitled to vote and they
    authorized, approved, or ratified the transaction.
    (2) For purposes of subsection (1)(b), a transaction is authorized,
    approved, or ratified if it received the affirmative vote of the majority of the
    directors on the board or the committee who had no interest in the transaction,
    though less than a quorum, or all independent directors who had no interest in the
    transaction. The presence of, or a vote cast by, a director with an interest in the
    transaction does not affect the validity of the action taken under subsection (1)(b).
    (3) For purposes of subsection (1)(c), a transaction is authorized,
    approved, or ratified if it received the majority of votes cast by the holders of
    shares who did not have an interest in the transaction. A majority of the shares
    held by shareholders who did not have an interest in the transaction constitutes a
    quorum for the purpose of taking action under subsection (1)(c).
    (4) Satisfying the requirements of subsection (1) does not preclude other
    claims relating to a transaction in which a director or officer is determined to have
    an interest. Those claims shall be evaluated under principles of law applicable to
    a transaction in which a director or officer does not have an interest.
    (5) The board, by affirmative vote of a majority of directors in office and
    irrespective of any personal interest of any of them, may establish reasonable
    compensation of directors for services to the corporation as directors or officers,
    but approval of the shareholders is required if the articles of incorporation,
    bylaws, or another provision of this act requires that approval. Transactions
    pertaining to the compensation of directors for services to the corporation as
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    directors or officers shall not be enjoined, set aside, or give rise to an award of
    damages or other sanctions in a proceeding by a shareholder or by or in the right
    of the corporation unless it is shown that the compensation was unreasonable at
    the time established.
    In Camden v Kaufman, 
    240 Mich. App. 389
    , 398; 613 NW2d 335 (2000), this Court held that
    under MCL 450.1545a, the “interested person” must “demonstrate that the transaction was
    validated in one of the ways permitted by statute.” “[O]nce proper approval of an interested
    transaction is obtained, the type of challenges available are limited to waste, fraud, illegality, or
    the like.” 
    Id. at 396.
    We reject plaintiffs’ argument that MCL 450.1545a is not applicable because the statute
    applies only to transactions between the corporation and its directors or officers. Clear and
    unambiguous statutory language must be applied as written. 
    Camden, 240 Mich. App. at 394
    .
    “[N]othing may be read into a statute that is not within the intent of the Legislature apparent
    from the language of the statute itself.” Detroit Pub Sch v Conn, 
    308 Mich. App. 234
    , 248; 863
    NW2d 373 (2014). The statutory language, “A transaction in which a director or officer is
    determined to have an interest,” does not contain any language restricting the types of transaction
    to which the statute applies. The statute makes no distinction regarding transactions between a
    director and the corporation, and transactions between the corporation and a third party.
    Plaintiffs argue that the Board’s negotiations over the terms of the merger were tainted
    from the time that the Talmer defendants began to bargain for their own financial benefit.
    Plaintiffs cite Torgow’s and Provost’s appointments as chairman and vice chairman,
    respectively, and other Board members’ appointments as directors of the Chemical Board of
    Directors. However, the question is not whether these defendants benefited, but whether the
    merger was validated by Board approval or shareholder approval with disclosure of material
    facts. Plaintiffs also cite the Talmer defendants’ opportunities to tender 25 percent of their
    outstanding stock options in exchange for cash. However, this opportunity was available to all
    shareholders, not just directors.
    Plaintiffs argue that the Board and shareholders’ approval of the merger did not validate
    the transaction under § 1545a(1) because Board members used the transaction to obtain unique
    financial benefits not shared by the shareholders. Plaintiffs cite several cases that recognize the
    potential for corporate officers and directors to negotiate deals that are advantageous to
    themselves but suboptimal for public shareholders. Under § 1545a, however, the pertinent
    inquiry is not whether a transaction was more favorable to directors than shareholders, but
    whether a majority of all disinterested Board members or a majority of shareholders approved
    the transaction with sufficient disclosure of the material facts.
    The Talmer defendants argue that the conditions stated in § 1545a(1)(b) and (c) were
    satisfied because the material facts concerning KBW’s potential conflicts and the directors’
    benefits were disclosed before the Board unanimously approved the merger, and 99% of the
    shareholders voted to approve the merger. The Talmer Board was composed of 12 directors, five
    of whom received positions on the Chemical Board. A majority of the disinterested directors
    approved the merger. A Proxy Statement disclosed that the merger agreement was accompanied
    by service agreements for Torgow, Provost, and Dennis Klaeser, and it also recited the terms of
    -5-
    employment for Provost, Torgow, and Klaeser. It further disclosed that all shareholders holding
    outstanding stock options would receive 25 percent of their value in cash. Consequently, the
    entire Board and 99 percent of the shareholders approved the merger after they received
    disclosure of these material facts. Plaintiffs emphasize that the interested directors negotiated
    their own employment terms before the terms of the merger agreement were finalized, but
    regardless of when these conditions were first discussed, the Board members and the
    shareholders had knowledge of these facts when they voted to approve the merger.
    Plaintiffs contend that the Talmer defendants disregarded KBW’s conflicts of interest.
    Plaintiffs argue that Ronald Klein’s deposition testimony establishes a question of fact with
    respect to the Board’s knowledge of the potential conflicts of interest for KBW because he
    “could not confirm” that he had knowledge of KBW’s contacts with Chemical. We disagree.
    Klein testified that he knew about KBW’s contacts with Chemical. He just could not recall
    specific details about what information KBW shared with Chemical. Additionally, the minutes
    for a November 3, 2015 meeting of Talmer’s Strategic Initiatives Committee (SIC) state that
    KBW had previously advised Chemical in transactions in 2014 and 2015 involving other bank
    mergers. Plaintiffs cite these minutes in support of their argument that the full Board did not
    properly vet KBW’s conflicts of interest. However, the Talmer defendants presented evidence
    that KBW gave a presentation to the Board regarding a merger with Chemical on March 31,
    2015. The Talmer defendants also cite Klein’s deposition testimony that the Board “asked KBW
    to go share some information with Chemical,” knowing that KBW had a relationship with
    Chemical. The Talmer defendants were thus aware of and approved KBW’s contacts with
    Chemical during the early phases of negotiation. Additionally, the minutes for the November 17,
    2015 Board meeting state that Provost reported that the SIC had met with KBW’s managing
    director, James Harasimowicz, on November 3, 2015, to conduct a conflict-of-interest analysis
    with KBW.
    Plaintiffs observe that the July 2015 engagement letter entitled KBW to receive fees for
    any transaction over the next 18 months. The letter states that it “confirms the engagement” of
    KBW by Talmer, to offer financial advisory and investment banking services on an exclusive
    basis “in connection with the possible acquisition” of Talmer “by [Company E] or another
    acquiror . . . .” (Emphasis added.) Plaintiffs argue that this agreement gave KBW an incentive
    to encourage a merger with Chemical, because it would have received fees if Talmer entered into
    a merger agreement with Company E or with any other institution. The Talmer defendants
    dispute this interpretation, but even if plaintiffs’ interpretation of the phrase “another acquiror” is
    correct, KBW would benefit from any transaction that Talmer entered into. It also would not
    have been necessary for Talmer and KBW to enter into a new agreement with the December
    2015 engagement letter. Under these circumstances, the engagement letter does not support an
    inference that KBW was working both sides of a Talmer and Chemical transaction, or that the
    Board and shareholders approved the merger without disclosure of KBW’s potential conflicts.
    Plaintiffs argue that the approval of the merger was tainted because the Board and the
    shareholders relied on financial forecasts that KBW contrived to undervalue Talmer’s stock.
    Plaintiffs state that although Talmer pursued a successful plan of growth by acquiring other
    banking institutions before 2015, the financial forecasts that KBW prepared for the merger
    assumed that Talmer would discontinue this strategy. Plaintiffs state that KBW never provided
    financial models that were prepared for the Federal Deposit Insurance Corporation (FDIC), and
    -6-
    that forecasted growth through future acquisitions. Plaintiffs cite Dennis Klaeser’s deposition
    testimony in support of this allegation. Klaeser, Talmer’s Chief Financial Officer, testified in his
    deposition that acquisitions were the core strategy for Talmer’s growth. He stated that Talmer
    submitted plans to the FDIC in 2010 and 2014 that included financial projections based on
    continuation of the acquisition strategy. In early 2014, Klaeser submitted a five-year plan and a
    three-year update to the FDIC. The model in these plans projected growth of nearly $10 billion
    by 2017. Klaeser agreed that Talmer likely would have continued to pursue this plan if it had not
    merged with Chemical, but he also stated that there were fewer banking institutions available for
    acquisition because they were recovering from the downturn in the industry. He stated that the
    merger and acquisition market had “changed significantly.” He explained that there were
    opportunities for acquisitions, but greater risk that these opportunities would not materialize.
    Klaeser explained that the FDIC required the financial forecasts in order to monitor institutions
    that might grow too rapidly and stress its capital base.
    Plaintiffs argue that the omission of the FDIC forecasts was a material omission. “In
    order for a plaintiff to state properly a claim for breach of a disclosure duty by omission, he must
    plead facts identifying (1) material, (2) reasonably available (3) information that (4) was omitted
    from the proxy materials.” Orman v Cullman, 794 A2d 5, 31 (Del Ch, 2002).2 In order for an
    alleged omission to be material, there must be a “substantial likelihood that the disclosure of the
    omitted fact would have been viewed by the reasonable investor as having significantly altered
    the ‘total mix’ of information made available” to the shareholder.” 
    Id. at 31-32.
    Plaintiffs
    characterize this omission as an intentional withholding of material information. They
    emphasize that Klaeser testified that Talmer would have continued to seek acquisition
    opportunities, but Klaeser testified that such opportunities were becoming less certain. KBW’s
    assumption that there would not be future acquisitions was thus reasonable. Moreover, the
    salient fact is that the shareholders and Board members received projections and received
    information regarding what factors were and were not included in those projections. Financial
    forecasts are not definitive facts, but inherently uncertain predictions of future events. KBW
    disclosed that its forecasts were based on the assumption that Talmer would not continue its
    acquisition strategy.
    For these reasons, the trial court did not err by ruling that the Talmer defendants were
    entitled to summary disposition pursuant to MCR 2.116(C)(10).
    IV. SUMMARY DISPOSITION FOR KBW
    Plaintiffs also argue that the trial court erred by granting summary disposition in favor of
    KBW pursuant to MCR 2.116(C)(10) on their claims alleging that KBW aided and abetted the
    Talmer defendants’ breach of fiduciary duty. We disagree.
    2
    “In the absence of clear Michigan law on matters of corporate law, Michigan courts often refer
    to Delaware law.” Glancy v Taubman Ctrs, Inc, 373 F3d 656, 674 n 16 (CA 6, 2004), citing
    Russ v Fed Mogul Corp, 
    112 Mich. App. 449
    , 457-458; 316 NW2d 454 (1982).
    -7-
    Michigan law recognizes a cause of action for aiding and abetting a breach of fiduciary
    duty. Echelon Homes, LLC v Carter Lumber Co, 
    261 Mich. App. 424
    , 445; 683 NW2d 171
    (2004), rev’d in part on other grounds 
    472 Mich. 192
    (2005). “Where a person in a fiduciary
    relation to another violates his duty as fiduciary, a third person who participates in the violation
    of duty is liable to the beneficiary.” LA Young Spring & Wire Corp v Falls, 
    307 Mich. 69
    , 106;
    11 NW2d 329 (1943). The essential elements required for aiding and abetting liability are: (1)
    that an independent wrong occurred; (2) that the aider or abettor had knowledge of the wrong’s
    existence; and (3) that substantial assistance be given to effecting that wrong. See Restatement
    Torts, 2d, § 876(b).
    As discussed earlier, the trial court properly granted summary disposition for the Talmer
    defendants with respect to plaintiffs’ claim for breach of fiduciary duty. Accordingly, plaintiffs
    cannot satisfy the element of the existence of an independent wrong with respect to their aiding
    and abetting claim against KBW. Accordingly, the trial court did not err by granting KBW’s
    motion for summary disposition pursuant to MCR 2.116(C)(10).
    V. PLAINTIFFS’ REQUEST FOR ADDITIONAL DISCOVERY
    Plaintiffs also argue that the trial court erred by granting summary disposition
    prematurely, before they had the opportunity to conduct full discovery. We disagree.
    “A motion under MCR 2.116(C)(10) is generally premature if discovery has not been
    completed unless there is no fair likelihood that further discovery will yield support for the
    nonmoving party’s position.” Liparoto Constr, Inc v Gen Shale Brick, Inc, 
    284 Mich. App. 25
    ,
    33-34; 772 NW2d 801 (2009). The principal factual issues surrounding plaintiffs’ claims
    concerned financial benefits to various Board members from the merger with Chemical, KBW’s
    alleged potential conflicts of interest, the Board members’ knowledge and disclosure of these
    conflicts, the data KBW considered or failed to consider in its financial projections, and
    disclosures of these matters to shareholders. Plaintiffs obtained documentary evidence of the
    merger agreement, Torgow’s and Provost’s financial benefits, minutes of Board meetings and
    SIC meetings, and the materials that KBW presented to Talmer and Chemical. Plaintiffs also
    obtained the Proxy and Supplemental Proxy statements that were presented to shareholders.
    Under MCL 450.1545a, the pertinent question was whether the material facts of the transaction
    and the directors’ interests were disclosed to Board members and shareholders. The
    documentary evidence addressed this question. Individuals’ deposition testimony might add
    personal recollections and subjective impressions to the documentary evidence, but such
    evidence does not supplant the documents. Plaintiffs have not made a persuasive showing that
    further discovery was fairly likely to yield support for their position. Accordingly, we reject
    plaintiffs’ argument that discovery was premature.
    VI. TIMELINESS OF MOTION FOR CLASS CERTIFICATION
    Plaintiffs argue that the trial court erred by denying their motion to strike defendants’
    notice of plaintiffs’ failure to timely move for class certification under MCR 3.501(B)(1) in the
    2017 action. They assert that their motion was timely filed pursuant to the trial court’s stipulated
    order extending the time for moving for class certification, which was entered before plaintiffs
    filed their first amended complaint (“FAC”). In light of our conclusion that the trial court
    -8-
    properly granted summary disposition, we need not address this issue. Inge v Rock Fin Corp,
    388 F3d 930, 941 (CA 6, 2004).
    VI. DISMISSAL OF LEE AND CLERS UNDER MCR 2.116(C)(6)
    After the 2017 action was filed, plaintiffs Lee and CLERS moved to voluntarily dismiss
    the 2016 action without prejudice so that they, along with plaintiff Nicholl, could continue with
    the 2017 action. The trial court did not grant Lee and CLERS’s motion for voluntary dismissal,
    but instead dismissed Lee and CLERS from the 2017 action.
    Summary disposition is permissible under MCR 2.116(C)(6) where “[a]nother action has
    been initiated between the same parties involving the same claim.” “A circuit court’s ruling
    under MCR 2.116(C)(6) is reviewed de novo on the basis of the record as it existed at the time
    the ruling was made.” Planet Bingo, LLC v VKGS, LLC, 
    319 Mich. App. 308
    , 326; 900 NW2d
    680 (2017). MCR 2.116(C)(6) authorizes the trial court to dismiss an action where “[a]nother
    action has been initiated between the same parties involving the same claim.” Plaintiffs argue
    that in Fast Air, Inc v Knight, 
    235 Mich. App. 541
    , 545; 599 NW2d 489 (1999), this Court held
    that the trial court is required to consider the procedural posture before granting summary
    disposition under subsection (C)(6). Actually, in Fast Air, this Court held “that MCR
    2.116(C)(6) does not operate where another suit between the same parties involving the same
    claims is no longer pending at the time the motion is decided.” Here, the 2016 and 2017 actions
    were pending simultaneously up until the time that the trial court granted the summary
    disposition motions. There was no factor precluding the trial court from granting the (C)(6)
    motion with respect to Lee and CLERS. In any event, the trial court’s dismissal of plaintiffs’
    claims on the merits in both the 2016 and 2017 actions are dispositive of the claims against Lee
    and CLERS regardless of whether they were proper parties in the 2017 action.
    Affirmed in both appeals.
    /s/ Stephen L. Borrello
    /s/ Kirsten Frank Kelly
    /s/ Deborah A. Servitto
    -9-
    

Document Info

Docket Number: 344009

Filed Date: 10/17/2019

Precedential Status: Non-Precedential

Modified Date: 10/18/2019