the state of new hampshire supreme …w2323630.1} the state of new hampshire supreme court no....
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THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No. 2011-0057
Hansa Consult of North America, LLC
v.
hansaconsult Ingenieurgesellschaft mbH
______________________________________________________________________________
Brief of Appellant Hansa Consult of North America, LLC ______________________________________________________________________________
On Appeal from a Final Order of the Rockingham County Superior Court
Lawrence M. Edelman N.H. Bar No. 738 Michele E. Kenney N.H. Bar No. 19333 Pierce Atwood LLP Pease International Tradeport One New Hampshire Avenue Suite 350 Portsmouth, NH 03801 (603) 433-6300 To Be Argued By: Lawrence M. Edelman or Michele E. Kenney
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TABLE OF CONTENTS
Page Table of Citations…………………………………………………………………….........
iii
Questions Presented for Review…………………………………………………….........
1
Applicable Statutory and Constitutional Provisions……………………………………
2
Statement of the Case…………………………………………………………………….
3
I. Factual Background………………………………………………………
3
A. The Parties’ Distribution Agreement……………………………
3
B. Termination of the Distribution Agreement…………………….
4
C. hansaconsult’s Theft of HCNA’s Information and Trade Secrets……………………………………………………………...
5
II. Procedural History………………………………………………………..
6
A. HCNA’s Claims Against hansaconsult…………………………..
6
B. The 2006 Original Action and 2006 German Action……………
7
C. hansaconsult Commenced a New German Action, and HCNA Moved To Bring the 2006 Action Forward To Enforce Settlement Protocol Agreement…………………………………..
8
D. hansaconsult Moved To Dismiss or Stay the 2009 Action……...
9
E. Orders on HCNA’s Motion To Enforce Settlement Protocol Agreement…………………………………………………………
10
F. The Superior Court (McHugh, J.) Granted hansaconsult’s Motion To Dismiss the 2009 Action Even Though that Action Was Stayed………………………………………………………...
12
Summary of the Argument……………………………………………………………….
13
Argument………………………………………………………………………………….. 15
I. The Standard of Review………………………………………………….. 15
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II. The Superior Court Erred in Dismissing HCNA’s Claims Because Such Claims Are Not Subject To the Distribution Agreement’s German Forum Selection Clause………………………………………... 16
III. The Superior Court Erred in Adopting hansaconsult’s Arguments that HCNA’s Claims Are Barred by the Doctrines of Collateral Estoppel and/or Res Judicata…………………………………………….. 23
IV. The Superior Court Erred in Dismissing HCNA’s Claims Sua Sponte, Without Providing HCNA Notice and an Opportunity To Be Heard… 25
Conclusion………………………………………………………………………………… 26
Request for Oral Argument……………………………………………………………… 26
Supreme Court Rule 16(10) Certification………………………………………………. 27
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TABLE OF CITATIONS
Cases Coleman v. Coleman, 94 N.H. 456 (1947)……………………………………………………………………..24 Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291 (3d Cir. 1994)……………………………………………………………..20 Dancart Corp. v. St. Albans Rubber Co., Ltd., 124 N.H. 598 (1984)……………………………………………………………………16 Gen. Envtl. Sci. Corp. v. Horsfall, 753 F. Supp. 664 (N.D. Oh. 1990)……………………………………………………..20 Gray v. Kelly, 13 A.3d 848 (N.H. 2010)…………………………………………………….....14, 15, 23 In re Estate of Norton, 135 N.H. 62 (1991)……………………………………………………………………..24 In re Juvenile 2004-637, 152 N.H. 805 (2005)……………………………………………………………14, 23, 24 Ingenieria Alimentaria Del Matatipac, S.A. De C.V. v. Ocean Garden Prods. Inc., 320 Fed. Appx. 548 (9th Cir. 2009)……………………………………………………21 Morgenroth & Assocs., Inc. v. N.H., 126 N.H. 266 (1985)……………………………………………………………………23 Motion Motors, Inc. v. Berwick, 150 N.H. 771 (2004)……………………………………………………………………15 Omron Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600 (7th Cir. 1994)………….……………………………………………...19, 21 Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007)…………………………………………………………….20 Porter v. Town of Sandwich, 153 N.H. 175 (2006)……………………………………………………………………15 State v. Zidel, 156 N.H. 684 (2008)……………………………………………………………………15
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Sterling Int'l, Inc. v. Virtools Canada, Inc., 2006 WL 2035515 (E.D. Wash. July 18, 2006)...……………………………….…19, 21 Strafford Tech., Inc. v. Camcar Div. of Textron, Inc., 147 N.H. 174 (2001)……………………………………………………………………16 The Jayson Co. v. Vertical Market Software, 2006 WL 1374039 (D.N.J. May 18, 2006)……………………………...…….........19, 20 Vermont Nat. Bank v. Taylor, 122 N.H. 442 (1982) ……………………………………………………………...……26 Statutes RSA 508-A:3 [Action in Another Place by Agreement]………………………………..…16, 21 Constitutional Provisions New Hampshire Constitution, Pt. 1, Art. 15……………………………………………………26 U.S. Constitution, amend XIV, sec. 1…………………………………………………………..26
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QUESTIONS PRESENTED FOR REVIEW 1. Did the Superior Court err in dismissing the claims of Plaintiff/Appellant Hansa
Consult of North America (“HCNA”) against Defendant/Appellee hansaconsult
Ingenieurgesellschaft mbH (“hansaconsult”), by applying a German forum selection clause in a
Distribution Agreement between the parties, when HCNA’s claims do not arise out of, or
implicate, that agreement, but rather arise out of the theft of HCNA’s trade secrets, in New
Hampshire, by a New Hampshire-based agent of hansaconsult, the latter having downloaded the
contents of the HCNA computer server (some 7 gigabytes of data), purloining, without
limitation, every customer-specific database (including test data and contact information), job
file, software program, proposal, contract, layout, schematic drawing, configuration drawing,
operation manual, user manual, maintenance manual, and photograph – that is to say, virtually
the entire business of HCNA? A. 1-11, 127-31.1
2. Did the Superior Court err in dismissing HCNA’s claims and, in the course of
doing so, expressly adopting, without reservation, hansaconsult’s arguments, set forth in its
pleadings, that HCNA’s claims are barred by the doctrines of collateral estoppel and/or res
judicata? A. 127-31, 133-42.
3. Did the Superior Court err in dismissing HCNA’s claims sua sponte, without
providing HCNA notice and an opportunity to be heard? A. 127-31.
1 “A.” refers to the Appendix to HCNA’s brief.
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APPLICABLE STATUTORY AND CONSTITUTIONAL PROVISIONS
Statute R.S.A. § 508-A:3 [Action in Another Place by Agreement]:
If the parties have agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state, the court will dismiss or stay the action, as appropriate, unless: I. The court is required by statute to entertain the action; II. The plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; III. The other state would be a substantially less convenient place for the trial of the action than this state; IV. The agreement as to the place of the action was obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; or V. It would for some other reason be unfair or unreasonable to enforce the agreement.
Constitutional Provisions U.S. Constitution, amend. XIV, § 1: [N]or shall any state deprive any person of life, liberty, or property, without due process of law . . . . New Hampshire Constitution, Pt. 1, Art. 15:
No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land . . . .
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STATEMENT OF THE CASE
I. Factual Background Appellant HCNA is a New Hampshire business that designs, manufacturers, installs, and
maintains leak detection systems for airport fuel farms. A. 2.
Appellee hansaconsult is a German engineering and consulting company that, either
directly or through others, produces, distributes, and provides services in connection with
industrial and fuel plant operations. A. 2.
A. The Parties’ Distribution Agreement
hansaconsult, through its use of a once-patented method for checking pipes for fuel leaks,
developed software known as the “tightness control system” or “TCS,” which evaluated and
analyzed liquid pressure data. A. 3. (The patent expired on October 31, 2003. A. 3.) The TCS
software is only one component of a marketable leak detection system. A. 3. Other systems and
equipment are necessary to generate, organize and deliver the data to the TCS software. A. 3.
HCNA was the exclusive distributor of certain products and services of hansaconsult in
the United States and Canada, including of the TCS product, pursuant to the terms of a
Distribution Agreement effective as of September 5, 2001. A. 3. During the course of the
Distribution Agreement, HCNA designed, developed, produced or purchased, and installed or
commissioned all of the hardware and software components necessary for the delivery of data to
the TCS software designed by hansaconsult. A. 3. The Distribution Agreement reflected the
parties’ understanding that the TCS software was proprietary to hansaconsult, but that the data
delivery process and system configurations for each installed leak detection system were the
responsibility of HCNA. A. 3.
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Further, the Distribution Agreement expressly stated that HCNA was “independent” of,
and did not “act on behalf of,” hansaconsult. A. 3. The Distribution Agreement provided that
HCNA was “not obliged to inform” hansaconsult “about the identity of its customers, neither
[sic] during the contract period nor [sic] after its termination.” A. 3.
By 2003, hansaconsult had taken note of HCNA’s success in its marketing and
installation of leak detection systems for commercial and military airport fuel farm owners and
operators. A. 3-4. hansaconsult expressed its keen desire to share in a piece of HCNA’s system
design and installation business and the follow-on business developed entirely by HCNA that
included repair, maintenance and re-certification of existing leak detection systems. A. 4. To
bring pressure to bear on HCNA to renegotiate an agreement that it deemed more lucrative for
itself, hansaconsult delivered a notice of intent to terminate the Distribution Agreement effective
as of December 31, 2005, and proposed that HCNA become a mere sales representative of
hansaconsult and give up its role as an independent distributor. A. 4. hansaconsult proposed to
HCNA that all of the customer relations, and all of the system configurations for each installed
leak detection system that were proprietary to HCNA (from years of work), would become
property of hansaconsult, in exchange for virtually no consideration. A. 4.
B. Termination of the Distribution Agreement
HCNA rejected hansaconsult’s proposal, and the parties prepared for a scheduled
termination of the Distribution Agreement on December 31, 2005. A. 4.2 hansaconsult was
unwilling, however, to devote the time and resources necessary to develop its North American
business without HCNA after the December 31, 2005 expiration of the Distribution Agreement.
2 In preparation of the termination of the Distribution Agreement, HCNA utilized the “best mode” disclosures in the expired patent of hansaconsult, on the basis of which hansaconsult had developed the TCS software, to develop the patent-based component of the leak detection system. A. 4. The HCNA software is one component of the system known as the “HCNA Leak Detection System” or “HCNA LDS.” A. 4.
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A. 4. hansaconsult prepared for the termination of the Distribution Agreement by engaging John
Douglas Birnie, II (“Mr. Birnie”) of Alton, New Hampshire, who, until the December 31, 2005
expiration of the Distribution Agreement, was an employee of HCNA. A. 4.
C. hansaconsult’s Theft of HCNA’s Information and Trade Secrets
Mr. Birnie was a liquid fuel maintenance technician employed by HCNA. A. 5. He last
performed work for HCNA on December 16, 2005. A. 5. After returning from a two-week
vacation, on December 30, 2005, Mr. Birnie gave HCNA notice that we would depart the
employ of HCNA the very next day – i.e., the expiration date of the Distribution Agreement
between HCNA and hansaconsult – and explained his decision by falsely expressing a desire to
“get off the road.” A. 5.
Before Mr. Birnie’s departure from HCNA, he downloaded the contents of the HCNA
computer server (some 7 gigabytes of data), purloining, without limitation, every customer-
specific database (including test data and contact information), job file, software program,
proposal, contract, layout, schematic drawing, configuration drawing, operation manual, user
manual, maintenance manual, and photograph (“the Purloined Information”) – that is to say,
virtually the entire business of HCNA. A. 5. Included among the Purloined Information were
trade secrets of HCNA. A. 5.
On January 1, 2006 – one day after Mr. Birnie abruptly terminated his employment with
HCNA, falsely claiming a desire to “get off the road” – hansaconsult formally appointed Mr.
Birnie to be its U.S. representative. A. 5. At that time, hansaconsult: (a) had no U.S. customers;
(b) previously sought, unsuccessfully, to acquire HCNA’s business data and customer-specific
information; and (c) undertook, with the Purloined Information, to compete with HCNA for U.S.
business. A. 5.
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hansaconsult, through Mr. Birnie, began to represent to the market, including HCNA
customers and prospective customers, falsely and improperly, that HCNA was without authority
to supply, maintain, support, test and certify leak detection systems that contain, as one of their
component parts, the TCS software. A. 5.
In January 2006, HCNA demanded that Mr. Birnie cease and desist from making these
false and improper representations to the market. A. 6. Ignoring HCNA’s demand, hansaconsult
continued to use Mr. Birnie – now the bearer of the Purloined Information – to compete with
HCNA in the United States. A. 6.
II. Procedural History
A. HCNA’s Claims Against hansaconsult
By Writ of Summons, dated December 11, 2009, HCNA asserted five claims against
hansaconsult. A. 1-11 (the “2009 Action”).
Count I states a claim against hansaconsult under the Uniform Trade Secrets Act, RSA
chapter 350-B, arising from hansaconsult’s willful and malicious misappropriation of HCNA’s
trade secrets through its New Hampshire-based agent, Mr. Birnie. A. 6-7.
Count II states a claim against hansaconsult under the Consumer Protection Act, RSA
chapter 358-A, arising from hansaconsult’s willful and knowing misappropriation of HCNA’s
Purloined Information, including trade secrets, and its willful and knowing misrepresentations to
the market about HCNA’s authority to supply, maintain, support, test and certify leak detection
systems. A. 7-8.
Count III states a claim against hansaconsult for common law conversion, arising from
hansaconsult’s wrongful and bad faith exercise of dominion and control over the Purloined
Information contrary to HCNA’s right to own and control it exclusively. A. 8-9.
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Count IV states a claim against hansaconsult for tortious interference with contractual
and otherwise advantageous business relations claim against hansaconsult, arising from
hansaconsult’s false representations to the market, including fuel farm owners, operators or
contractors with whom HCNA has contractual or otherwise advantageous business relations, that
HCNA is without authority to supply, maintain, support, test and certify leak detection systems
including those containing, as one of their component parts, certain software manufactured by
hansaconsult. A. 9.
Count V states a claim against hansaconsult for unfair competition, arising from
hansaconsult’s having misappropriated the Purloined Information and having made false
representations to the market about HCNA’s authority to supply, maintain, support, test and
certify leak detection systems. A. 10.
B. The 2006 Original Action and 2006 German Action
Originally, HCNA had asserted these claims in a Counterclaim against hansaconsult in an
action that hansaconsult brought against HCNA and one of its principals, Joerg Hoehner, in
March 2006 in the Rockingham County Superior Court (the “2006 Original Action”). In the
2006 Original Action, hansaconsult asserted nine claims against HCNA alleging, without basis,
that HCNA had reverse-engineered and then “bootlegged” its TCS software, and sought,
unsuccessfully, a preliminary injunction to restrain HCNA’s business in the United States. A.
34. None of hansaconsult’s claims alleged a breach of the Distribution Agreement. A. 34, 51.
On April 14, 2006, HCNA filed its Counterclaim. A. 35-36. The Court entered an Order, dated
May 4, 2006, scheduling trial to commence on August 21, 2006. A. 37.
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On May 18, 2006, hansaconsult filed a separate action against HCNA and Mr. Hoehner
in the District Court of Hamburg, Germany, this time alleging that HCNA breached the parties’
Distribution Agreement (the “2006 German Action”). A. 37, 51.
The parties voluntarily non-suited all claims in the 2006 Original Action and the 2006
German Action without prejudice, pursuant to the terms of a settlement protocol agreement,
which contemplated earnest settlement negotiations and contained certain conditions for re-filing
claims, as well as a provision tolling the statutory limitation periods. A. 37-40. On August 8,
2006, the Court (Nadeau, J.) granted the parties’ Joint Motion for Voluntary Nonsuit Without
Prejudice of Action and Counterclaims. A. 29.
C. hansaconsult Commenced a New German Action, and HCNA Moved To Bring the 2006 Action Forward To Enforce Settlement Protocol Agreement Without having satisfied the requirements for re-filing claims set forth in the parties’
settlement protocol agreement, in January 2009, hansaconsult re-filed its claims against HCNA
in the District Court of Hamburg, Germany, alleging breaches of the Distribution Agreement (the
“2009 German Action”). Because this re-filing of claims violated the parties’ settlement
protocol agreement, HCNA filed a Motion to Bring Forward and for Injunctive Relief to Enforce
Settlement Protocol Agreement in the 2006 Original Action in the Rockingham County Superior
Court. A. 30-49 (“Motion to Enforce Settlement Protocol Agreement”).
In its Motion to Enforce Settlement Protocol Agreement, HCNA requested that the
Superior Court find that hansaconsult violated the parties’ settlement protocol agreement by
filing the 2009 German Action, that it enjoin hansaconsult from proceeding with the 2009
German Action and that it direct hansaconsult to dismiss the 2009 German Action without
prejudice. A. 47-48. hansaconsult objected, asserting that the new 2009 German Action
pertained only to its claim that HCNA breached the Distribution Agreement, which contained a
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German choice of law and forum provision, and indeed that its German action did not relate to
the non-breach-of-contract claims that it asserted in the 2006 Action, which were all based on
New Hampshire law. A. 50-51.
While HCNA’s Motion to Enforce Settlement Protocol Agreement was pending, HCNA
ran the risk that the statutory limitations periods on its claims against hansaconsult would expire
by the end of 2009 (that is, three years following the theft of HCNA’s information and trade
secrets). Therefore, on December 11, 2009, HCNA filed its Writ of Summons in the instant
2009 Action. A. 1-11.
D. hansaconsult Moved To Dismiss or Stay the 2009 Action
hansaconsult moved to dismiss or stay the 2009 Action. A. 12-28. It argued, principally,
that HCNA should be required to litigate all of its claims against hansaconsult in Germany – that
is, in light of the German forum selection clause in the parties’ Distribution Agreement. A. 13-
14, 16-17. Section 15 of the Distribution Agreement states:
1. This contract as well as the purchases of the individual Contract products to Authorized Dealer are subject to the laws of the Federal Republic of Germany. 2. Place of Jurisdiction is only Hamburg. Legal regulations and exclusive responsibilities remain unrestrained. 3. Place of Execution is the place of [hansaconsult].
A. 28 (the “German Forum Selection Clause”). hansaconsult argued, in the alternative, that the
Superior Court should either dismiss or stay this 2009 Action in light of HCNA’s pending
Motion to Enforce Settlement Protocol Agreement in the 2006 Original Action. A. 17-19.
Before HCNA was due to file an objection to hansaconsult’s motion to dismiss, the
parties agreed to stay the 2009 Action pending resolution of HCNA’s Motion to Enforce the
Settlement Protocol Agreement in the 2006 Original Action, an evidentiary hearing on which had
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been scheduled for August 24, 2010. A. 59-61. The parties stipulated that the stay of the 2009
Action would be “[w]ithout prejudice to the arguments of the parties in support of, or in
opposition to, dismissal or stay, and without prejudice to the right of the Defendant
[hansaconsult] to re-file a Motion to Dismiss upon the conclusion of a stay. . . . ” A. 60.
E. Orders on HCNA’s Motion To Enforce Settlement Protocol Agreement The Superior Court (McHugh, J.) held a hearing on HCNA’s Motion to Enforce
Settlement Protocol Agreement, and entered an interim Order, dated April 7, 2010, granting, in
significant part, the relief requested by HCNA. A. 52-58. It ordered that “the Germany lawsuit
… be held in abeyance until this Court conducts an evidentiary hearing on the limited question of
good faith negotiation [efforts under the parties’ settlement protocol agreement] and issues a
subsequent Order.” A. 57. The Superior Court (McHugh, J.) further ordered the parties to
exchange good faith settlement proposals prior to the evidentiary hearing. A. 58.
The Superior Court held an evidentiary hearing on the Motion to Enforce Settlement
Protocol Agreement on August 24, 2010. HCNA submitted a hearing memorandum in advance
of the hearing, discussing in detail hansaconsult’s violation of the settlement protocol agreement
and failure to comply with the Court’s Order directing it to make a good faith settlement
proposal. A. 62-79. hansaconsult submitted a post-hearing memorandum, arguing that it
satisfied its obligations under the settlement protocol agreement, and further, that HCNA may
not seek to enforce the settlement protocol agreement because it had commenced the 2009
Action. A. 80-93. HCNA filed a reply memorandum, in which it again requested that the
Superior Court direct hansaconsult to withdraw the German 2009 Action and comply with the
settlement protocol agreement. A. 94-102.
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By Final Order, dated September 28, 2010, the Superior Court (McHugh, J.) denied
HCNA’s Motion to Enforce Settlement Protocol Agreement. A. 103-09. It concluded: “This
case [the 2006 Action] shall remain dismissed and the parties are free to litigate all of their
underlying disputes where they agreed those disputes should be decided in their Distribution
Agreement, to wit, the Courts of Germany. The defendants [HCNA] are not unduly prejudiced
by the Court’s decision because their counterclaim remains alive in the German litigation.” A.
109. This Order is the subject of a separate appeal by HCNA in Case No. 2010-0803.
HCNA moved for reconsideration and clarification of this Order, arguing, among other
things, that it has no claims against hansaconsult in Germany. A. 112-16. Further, HCNA
argued that its claims against hansaconsult in the 2009 Action have nothing whatever to do with
the parties’ rights and obligations under the Distribution Agreement. A. 113. Rather, HCNA’s
claims address hansaconsult’s misconduct in preparing to compete with HCNA for the first time
as market competitors after the expiration of the Distribution Agreement – i.e., using its New
Hampshire-based agent to misappropriate HCNA’s trade secrets and make false representations
about HCNA to the marketplace. A. 113. Furthermore, HCNA pointed out that the 2009 Action
was presently stayed, and that after the stay was lifted, it should be given an opportunity to
demonstrate that its claims against hansaconsult do not arise under the Distribution Agreement.
A. 114.
hansaconsult objected to HCNA’s motion for reconsideration, and stated its intention to
renew its motion to dismiss the 2009 Action. A. 117-22. The Superior Court (McHugh, J.)
denied HCNA’s motion for reconsideration, without clarifying whether its Order denying
HCNA’s Motion to Enforce Settlement Protocol Agreement was intended to have any impact on
the 2009 Action. A. 123.
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F. The Superior Court (McHugh, J.) Granted hansaconsult’s Motion To Dismiss the 2009 Action Even Though that Action Was Stayed On October 28, 2010, without either party having yet moved, under the approved
Stipulation, to lift the stay of the 2009 Action (that is, to allow the renewal of the Motion to
Dismiss and the filing of an Objection), the Superior Court (McHugh, J.) issued an Order, sua
sponte, granting hansaconsult’s motion to dismiss the 2009 Action. A. 124-26. The Order on
Defendant’s Motion to Dismiss stated:
The genesis for all of the complaints by the plaintiff [HCNA] against the defendant [hansaconsult] and vice-versa is a certain Distribution Agreement that the parties executed in Germany in 2001. Indeed the plaintiff herein references that Agreement throughout its Writ. It has always been this Court’s view that the Courts of Germany should resolve all aspects of the alleged violations of said Agreement. . . . The Court understands that the plaintiff takes the position that since the alleged violation of the Distribution Agreement occurred in New Hampshire not in Germany, it should be a New Hampshire jury that decides its claims. The Court disagrees. One Court, the German Court, should resolve all issues regarding the Distribution Agreement, including the plaintiff’s claims in this case. . . . If the plaintiff does not voluntarily file their claims with the German Court then they run the risk of a res judicata finding should they attempt to litigate them in New Hampshire at some later date.
A. 125-26 (emphasis supplied).
HCNA moved for reconsideration of the Court’s Order on Defendant’s Motion to
Dismiss, explaining that none of its claims allege a violation of the Distribution Agreement, arise
under the Distribution Agreement, or “regard” the Distribution Agreement. A. 127-32. Further,
HCNA argued that the sua sponte dismissal of its claims while the 2009 Action was stayed,
without giving HCNA notice and an opportunity to be heard, was improper as a matter of
procedural due process. A. 128-30.
hansaconsult objected to HCNA’s motion for reconsideration, and in the alternative,
renewed its Motion to Dismiss. A. 133-42. hansaconsult contended that HCNA was bound,
under the doctrine of res judicata and/or collateral estoppel, by an observation made by the Court
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(read: dicta) in the April 7, 2010 interim Order on HCNA’s Motion to Enforce Settlement
Agreement in the 2006 Action, that the parties’ claims should be litigated in Germany. A. 135,
138-39. Further, it contended that HCNA’s claims in the 2009 Action are “tangled up in the
rights and obligations of the parties under the Distribution Agreement just []as the Court has
already determined.” A. 139.
By Order dated December 15, 2010, the Superior Court (McHugh, J.) denied HCNA’s
motion for reconsideration. That Order reads, in its entirety, as follows:
For all the reasons set forth in the defendant’s objection, the within Motion is denied. The Court has now received the benefit of the plaintiff’s reasoning as to why this case should not be dismissed and finds that the plaintiff’s position has no merit. Try as it might, the plaintiff cannot separate this case from the provisions of the Distribution Agreement executed in Germany which is referenced extensively in the plaintiff’s writ.
A. 143. HCNA’s appeal followed.
SUMMARY OF THE ARGUMENT
The Superior Court erred in dismissing HCNA’s claims on the basis of the Distribution
Agreement’s German Forum Selection Clause. Contrary to the Superior Court’s finding, the
2009 Action is not founded on a claim that hansaconsult violated the Distribution Agreement.
Further, none of HCNA’s claims is a breach of contract claim in disguise. None of HCNA’s
claims requires interpretation or application of the Distribution Agreement. None of HCNA’s
claims seeks to enforce any rights, obligations or remedies under the Distribution Agreement.
Simply put, HCNA’s claims do not arise under or regard the Distribution Agreement.
Rather, HCNA’s claims arise out of hansaconsult’s misconduct in preparing to enter the
North American market for the first time – that is, upon the expiration of the Distribution
Agreement. Having failed to convince HCNA to turn over its customer data and other trade
{W2299740.1} 14
secrets for virtually no consideration before the expiration of the Distribution Agreement,
hansaconsult undertook to steal them. Its misappropriation of HCNA’s trade secrets and false
representations about HCNA to the market were efforts calculated to destroy HCNA in the
marketplace and supplant its market position after the Distribution Agreement expired.
Thus, the Superior Court had no basis for ordering HCNA to go to Germany to litigate its
claims that hansaconsult violated New Hampshire law by misappropriating its trade secrets,
making false representations to the North American market and willfully and knowingly
engaging in unfair and deceptive business practices within this State.
The Superior Court also erred in expressly adopting, without reservation, hansaconsult’s
argument that the doctrines of collateral estoppel and/or res judicata preclude HCNA’s claims.
hansaconsult contends that HCNA’s claims are barred because the Superior Court, in making an
interim ruling on HCNA’s Motion to Enforce Settlement Protocol Agreement in the 2006
Action, observed in dicta that the parties’ claims should be litigated in Germany. This dicta has
no preclusive effect.
The Superior Court’s April 7, 2010 interim ruling was not a final ruling on the merits of
any claim, and thus res judicata does not apply. In re Juvenile 2004-637, 152 N.H. 805,
808 (2005) (citation omitted) (A “final judgment on the merits must have been rendered on the
first action.”). Indeed, there were no causes of action then pending in the 2006 Action. The only
issue before the Superior Court was whether hansaconsult violated the settlement protocol
agreement and thus should be enjoined from proceeding on its claims in Germany. The German
Forum Selection Clause was never at issue in the 2006 Action. This issue was not litigated and
not decided by the Superior Court in the 2006 Action. Accordingly, the doctrine of collateral
estoppel has no application here. See, e.g., Gray v. Kelly, 13 A.3d 848, 851 (N.H. 2010).
{W2299740.1} 15
To the extent that this Court does not determine the substantive issue of whether HCNA
may litigate its claims in New Hampshire, it should nevertheless reverse the Superior Court’s
Order dismissing HCNA’s claims because the dismissal, which was a ruling on a withdrawn
motion to dismiss in an action that was stayed, was so procedurally improper as to constitute a
violation of HCNA’s procedural due process rights.
ARGUMENT
I. The Standard of Review
In reviewing the Superior Court’s grant of hansaconsult’s Motion to Dismiss, this Court
assumes the allegations pleaded in HCNA’s 2009 Writ of Summons to be true, and draws all
reasonable inferences in HCNA’s favor. See Porter v. Town of Sandwich, 153 N.H. 175, 177
(2006) (citations omitted).
The Superior Court dismissed HCNA’s claims based on its interpretation of the German
Forum Selection Clause in the Distribution Agreement, as well as its wholesale adoption,
expressly made, of hansaconsult’s res judicata and collateral estoppel arguments. Therefore, this
Court’s review of the dismissal is de novo. See, e.g., Motion Motors, Inc. v. Berwick, 150 N.H.
771, 775 (2004) (“The proper interpretation of a contract . . . is a question of law for this court.
. . . We review the trial court’s interpretation of the contract de novo.”); see also Gray, 13 A.3d
at 851 (affirmative defenses of collateral estoppel and res judicata involve questions of law,
which receive de novo review). Likewise, the Court undertakes de novo review of the question
of whether the Superior Court violated HCNA’s procedural due process rights by dismissing the
2009 Action sua sponte, without affording HCNA notice and an opportunity to be heard. See,
e.g., State v. Zidel, 156 N.H. 684, 686 (2008) (“We review questions of constitutional law de
novo.”).
{W2299740.1} 16
II. The Superior Court Erred in Dismissing HCNA’s Claims Because Such Claims Are Not Subject To the Distribution Agreement’s German Forum Selection Clause
The Uniform Model Choice of Forum Act provides that, “[i]f the parties have agreed in
writing that an action on a controversy shall be brought only in another state . . . the court will
dismiss or stay the action, as appropriate,” subject to certain exceptions.3 RSA 508-A:3 [Action
in Another Place by Agreement] (emphasis supplied). Before a New Hampshire plaintiff, like
HCNA, may be prevented from accessing the courts of its own state based on a forum selection
clause, however, the court must subject the clause “to rigorous rules of interpretation,” to
determine whether the parties indeed intended the claims to be resolved, exclusively, in another
forum. Strafford Tech., Inc. v. Camcar Div. of Textron, Inc., 147 N.H. 174, 176 (2001) (citation
omitted); see also Dancart Corp. v. St. Albans Rubber Co., Ltd., 124 N.H. 598, 603 (1984)
(ambiguous foreign forum selection clause could not be properly read as giving foreign tribunal
exclusive jurisdiction over dispute). “If a reasonable and fair reading of such a clause would not
confer exclusive jurisdiction” over the dispute on the other tribunal, “it will not be enforced.”
Strafford Tech., Inc., 147 N.H. at 177.
The Superior Court dismissed all of HCNA’s claims against hansaconsult based on a
German Forum Selection in the parties’ Distribution Agreement, which states: “Place of
Jurisdiction is only Hamburg. Legal regulations and exclusive responsibilities remain
unrestrained.” A. 28. The Superior Court reasoned, without basis, that HCNA’s claims are for
3 An exclusive forum selection clause will not apply if:
I. The court is required by statute to entertain the action; II. The plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; III. The other state would be a substantially less convenient place for the trial of the action than this state; IV. The agreement as to the place of the action was obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; or V. It would for some other reason be unfair or unreasonable to enforce the agreement.
RSA 508-A:3, I-V.
{W2299740.1} 17
“alleged violations of said Agreement” and “are [claims] regarding the Distribution Agreement.”
A. 125. Its application of the German Forum Selection Clause to HCNA’s claims was improper.
The 2009 Action is about hansaconsult’s misappropriation of HCNA’s trade secrets, by
its New Hampshire-based agent, as it undertook to compete with HCNA in the North American
market – that is, after the Distribution Agreement expired. The 2009 Action is about
hansaconsult’s false representations to the market about HCNA, by its New Hampshire-based
agent, as it undertook to compete with HCNA after the Distribution Agreement expired. The
2009 Action does not purport to assert a claim for breach of the Distribution Agreement or any
other contract. None of HCNA’s claims requires interpretation of the Distribution Agreement.
None of HCNA’s claims requires application of the Distribution Agreement. None of HCNA’s
claims seeks to enforce rights, obligations or remedies under the Distribution Agreement.
Simply put, HCNA’s claims do not implicate the Distribution Agreement.
Although the 2009 Writ of Summons references the Distribution Agreement, as the
Superior Court observed, A. 125, it does so only to provide the historical context in which
HCNA’s claims arise. hansaconsult committed the wrongful acts at issue – misappropriation of
HCNA’s trade secrets and false representations to the market – after failing to convince HCNA
to enter a new agreement under which HCNA would turn over its customer data and other trade
secrets for virtually no consideration and conduct itself thereafter as a sales representative for
hansaconsult.
By way of background, the 2009 Writ of Summons explains that hansaconsult observed
the success of HCNA’s North American business during the course of the Distribution
Agreement and, hoping to strike a more lucrative deal with HCNA, proposed a new business
relationship. A. 3-4. Under hansaconsult’s proposal, HCNA would no longer be an independent
{W2299740.1} 18
distributor of certain hansaconsult products, as it was under the Distribution Agreement, but
rather, would become a sales representative of hansaconsult. A. 4. Under this proposal, HCNA
would, for virtually no consideration, turn over all of its customer relations, system
configurations for leak detection systems, and other proprietary information to hansaconsult. A.
4. Under the Distribution Agreement, HCNA was under no obligation to share this information
with hansaconsult. A. 3. To bring pressure to bear on HCNA to accept this proposal,
hansaconsult delivered a notice of intent to terminate the Distribution Agreement, effective
December 31, 2005. A. 4. HCNA rejected hansaconsult’s proposal, and the parties prepared for
a new relationship, as market competitors. A. 4.
hansaconsult was undeterred by its inability to achieve, on a transactional basis, access to
the customer relationships that HCNA had developed over a period of years. Effective January
1, 2006, hansaconsult engaged Mr. Birnie, HCNA’s New Hampshire-based technician until his
abrupt departure on December 31, 2005, who now possessed some seven gigabytes of stolen data
from HCNA’s New Hampshire-based computer server, including customer-specific data and
other trade secrets, and who, on behalf of hansaconsult, made false representations to the market
in this country about HCNA’s ability to supply, maintain, support, test and certify leak detection
systems that contain, as one of their component parts, hansaconsult’s software. A. 5. These
wrongful acts gave rise to HCNA’s claims against hansaconsult, under New Hampshire law, for
a violation of the Uniform Trade Secrets Act, RSA chapter 350-B (Count I), violation of the
Consumer Protection Act, RSA chapter 358-A (Count II), conversion (Count III), tortious
interference with contractual and otherwise advantageous business relations (Count IV), and
unfair competition (Count V). A. 6-10. None of these violations of New Hampshire statutory
{W2299740.1} 19
and common law have anything to do with HCNA’s distribution of hansaconsult products under
the Distribution Agreement.
That hansaconsult’s misappropriation of HCNA’s trade secrets and misrepresentations to
the market might or might not have occurred “but for” the parties’ Distribution Agreement (and
hansaconsult’s failed efforts to renegotiate and strike a better deal), does not mean HCNA’s 2009
claims arise under the Distribution Agreement. In determining whether a plaintiff’s claims fall
within the scope of a contract’s forum selection clause, courts routinely reject the sort of “but
for” analysis embraced by the Superior Court here. See, e.g., Omron Healthcare, Inc. v.
Maclaren Exports Ltd., 28 F.3d 600, 602 (7th Cir. 1994) (citations omitted) (“But-for causation
is an unsatisfactory understanding of language referring to ‘disputes arising out of’ an agreement
[containing a forum selection clause]. . . . ‘Arising out of’ and ‘arising under’ are familiar
phrases, and courts have resisted the siren call of collapsing them into but-for causation.”);
Sterling Int’l, Inc. v. Virtools Canada, Inc., No. CV-06-0059-AAM, 2006 WL 2035515, *3 (E.D.
Wash. July 18, 2006) (rejecting defendants’ argument that forum selection clause in a licensing
agreement governed plaintiff’s claims that did not implicate any rights or duties under that
agreement; “Defendants . . . [argue] that because [the parties’] . . . relationship exists only
because of its connection through the licensing agreement, this dispute therefore “arises from”
the Licensing Agreement. This argument has no merit. . . . This is a form of ‘but-for’ analysis
which courts have rejected as an interpretation of the “arising from” or “arising out of” language
in forum selection clauses.”); The Jayson Co. v. Vertical Market Software, No. 05-3883-JAG,
2006 WL 1374039, *5 n.10 (D.N.J. May 18, 2006) (citation omitted) (rejecting defendant’s
argument that a licensing agreement’s forum selection clause applied because, but for that
agreement, plaintiff would not have become aware of the alleged software flaws at issue in its
{W2299740.1} 20
claims; “The circumstances or pre-conditions of how [plaintiff] became aware of the alleged
flaws are not relevant to which contract governs the dispute. This is a form of ‘but-for’ analysis
which courts have rejected as an interpretation of the ‘arising from’ language in forum selection
clauses.”).
Courts in other jurisdictions take various approaches in determining whether a contract’s
forum selection clause applies to non-contract claims, all of which focus on the specific language
of the clause, as well as the centrality of the contract to the non-contract claims.4 Some courts
flatly decline to apply a contract’s forum selection clause when the plaintiff states no claim for
breach of that contract and seeks no remedies under that contract. See, e.g., Cottman
Transmission Sys., Inc. v. Martino, 36 F.3d 291, 293 (3d Cir. 1994) (contract’s forum selection
clause does not apply because claims are not stated under that contract); Gen. Envtl. Sci. Corp. v.
Horsfall, 753 F. Supp. 664, 667-68 (N.D. Oh. 1990) (“Plaintiff claims violations of the federal
RICO statute, state statutes and state common law. No contract claims and no contract remedies
are sought . . . . This suit is, therefore, broader than the forum selection clause.”).
Other courts “focus on the source of rights or duties” implicated by the plaintiff’s non-
contract claims. Phillips v. Audio Active Ltd., 494 F.3d 378, 392 (2d Cir. 2007). If the rights the
plaintiff seeks to enforce do not “originate from the . . . contract,” the contract’s forum selection
clause does not apply. Id. at 390. Forum selection clauses that apply to claims “arising out of”
the contract do not “encompass[] all claims that have some possible relationship with the
contract, including claims that may only ‘relate to,’ be ‘associated with,’ or ‘arise in connection
with’ the contract.” Id. at 389 (citations omitted); see also The Jayson Co. 2006 WL 1374039,
4 Research disclosed no New Hampshire case law articulating the standard for determining whether a contract’s forum selection clause governs a non-contract dispute.
{W2299740.1} 21
at *5 (“[T]he scope of the forum selection clause includes only disputes arising from the rights
and obligations created by the” contract containing it.) (emphasis supplied).
Courts in the Seventh and Ninth Circuits ask, more generally, “whether resolution of the
claims relates to interpretation of the contract.” Ingenieria Alimentaria Del Matatipac, S.A. De
C.V. v. Ocean Garden Prods., Inc., 320 Fed. Appx. 548, 549 (9th Cir. 2009) (citation omitted);
see also Omron Healthcare, Inc., 28 F.3d at 602 (claims requiring “construction of” the parties’
agreement may be covered by forum selection clause); Sterling Int’l Inc., 2006 WL 2035515, at
*4 (if “plaintiff’s causes of action” do not “depend upon the enforcement or interpretation of the”
contract with a forum selection clause, the clause does not apply).
By any of the foregoing standards of analysis, the German Forum Selection Clause does
not apply to HCNA’s claims that hansaconsult misappropriated its trade secrets, converted its
property, tortiously interfered with its contractual or advantageous business relations, and
unfairly competed with it. To begin, the language of the German Forum Selection Clause is not
expansive. It merely states, “[p]lace of Jurisdiction is only Hamburg. Legal regulations and
exclusive responsibilities remain unrestrained,” and thus, does not, by its terms, extend to
disputes other than those concerning the Distribution Agreement. That is to say, the parties have
not agreed that claims other than those under the Distribution Agreement must be litigated in
Germany. See RSA 508-A:3.
In fact, HCNA has presented no claim for breach of contract against hansaconsult under
the Distribution Agreement. The rights that HCNA seeks to vindicate do not emanate from, or
require interpretation of, the Distribution Agreement. Simply put, the Distribution Agreement is
in no way implicated by HCNA’s claims. The mere fact that the Distribution Agreement
provides background context to hansaconsult’s misappropriation of HCNA’s trade secrets and
{W2299740.1} 22
misrepresentations to the market place about HCNA does not trigger application of the
Distribution Agreement’s German Forum Selection Clause.
Indeed, hansaconsult itself has acknowledged that the German Forum Selection Clause
applies only to claims involving alleged breaches of the Distribution Agreement. In opposing
HCNA’s Motion to Enforce the Settlement Protocol Agreement in the 2006 Action, it argued:
“hansaconsult was careful to file its original breach of contract claim [under the Distribution
Agreement] in Hamburg back in 2006 while it pursued its NH law claims [claims of TCS
software piracy] in this forum. In the refiled Hamburg action, hansaconsult has restated the
breach of contract claim. It has not asserted any New Hampshire law claims in that action.” A.
51 (emphasis supplied). Just as hansaconsult availed itself of the New Hampshire court system
for its non-breach of contract claims against HCNA in the 2006 Action, HCNA is entitled to
bring its New Hampshire statutory and common law tort claims against hansaconsult in New
Hampshire, its home state.
In short, the Superior Court had no basis for ordering HCNA to travel to Germany to
litigate its claims arising from wrongs committed in New Hampshire by hansaconsult’s New
Hampshire-based agent, which seek to vindicate HCNA’s rights and obtain remedies under New
Hampshire statutes and common law. HCNA is not contractually required to, nor does it wish
to, litigate its New Hampshire claims against hansaconsult in Germany.
Accordingly, this Court should reverse the Order dismissing HCNA’s claims and remand
this case to the Superior Court.
{W2299740.1} 23
III. The Superior Court Erred in Adopting hansaconsult’s Arguments that HCNA’s Claims Are Barred by the Doctrines of Collateral Estoppel and/or Res Judicata The Superior Court articulated no basis for its dismissal of HCNA’s claims other than its
erroneous finding that HCNA’s claims are for “violations of” the Distribution Agreement and
thus are subject to the German Forum Selection Clause. A. 125-26. In denying HCNA’s motion
for reconsideration, however, the Superior Court adopted “all of the reasons set forth” in
hansaconsult’s objection to that motion. A. 143. Those reasons, in addition to the German
Forum Selection Clause, include an argument that HCNA’s claims are barred by the doctrines of
collateral estoppel and/or res judicata. A. 135, 138-39. This argument is without merit.
hansaconsult argued that these doctrines preclude HCNA from objecting to the Superior
Court’s dismissal of its claims in this action because the Superior Court observed, in its interim
April 7, 2010 Order on HCNA’s Motion to Enforce Settlement Protocol Agreement in the 2006
Action (“April 7 Order”), that the parties’ claims should be litigated in Germany. A. 52-58.
The April 7 Order has no such preclusive effect.
“[T]he doctrine of collateral estoppel bars a party to a prior action, or a person in privity
with such a party from relitigating any issue or fact actually litigated and determined in the prior
action.” Gray v. Kelly, 13 A.3d 848, 851 (N.H. 2010). Under the doctrine of res judicata, “a
final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent
litigation involving the same cause of action.” Morgenroth & Assocs., Inc. v. N.H., 126 N.H.
266, 269 (1985). “For the doctrine to apply, three elements must be met: (1) the parties must be
the same or in privity with one another; (2) the same cause of action must be before the court in
both instances; and (3) a final judgment on the merits must have been rendered on the first
action.” In re Juvenile 2004-637, 152 N.H. 805, 808 (2005) (citation omitted).
{W2299740.1} 24
The Superior Court’s erroneous observations in its April 7 Order that the Distribution
Agreement “is the subject of” the parties’ claims and that the parties’ claims should be litigated
in Germany, A. 55, were non-binding dicta, in that they were plainly unnecessary to the Court’s
April 7 Order, which was an interim order granting HCNA the relief it requested in its Motion to
Enforce Settlement Protocol Agreement. See, e.g., In re Estate of Norton, 135 N.H. 62, 64
(1991) (quoting Coleman v. Coleman, 94 N.H. 456, 458 (1947)) (Dicta is defined as those
portions of an opinion that are “not necessary to the decision[ ].”). The April 7 Order directed
the parties to hold the 2009 German Action in abeyance, as requested by HCNA, while the
Superior Court determined, also as requested by HCNA, whether hansaconsult breached the
settlement protocol agreement. A. 57. The question of what forum is available to HCNA on its
claims against hansaconsult in the 2009 Action was never before the Superior Court in the 2006
Action. Nor was that issue actually litigated in the 2006 Action, or actually determined by the
Superior Court in the 2006 Action. Accordingly, the doctrine of collateral estoppel does not
apply.
The doctrine of res judicata also has no application. Again, the question of the proper
forum for HCNA’s claims was not before the Superior Court, nor was it relevant to the Superior
Court’s resolution of HCNA’s Motion to Enforce Settlement Protocol Agreement, which only
sought to enforce the parties’ settlement protocol agreement. A. 47. Further, there were no
causes of action pending in the 2006 Action when the Superior Court entered its April 7 Order,
and thus, that Order cannot preclude any causes of action in the 2009 Action. See In re Juvenile
2004-637, 152 N.H. at 808 (“the same cause of action must be before the court in both instances”
for res judicata to apply). Moreover, the April 7 Order was not a “final judgment on the merits”
of any claim, id., but rather, an interim order partially granting HCNA the relief it requested. Id.
{W2299740.1} 25
(“[A] final judgment on the merits must have been rendered on the first action” for res judicata
to apply).
Accordingly, HCNA is not precluded from objecting to the Superior Court’s dismissal of
its claims by the doctrines of collateral estoppel and/or res judicata.
IV. The Superior Court Erred in Dismissing HCNA’s Claims Sua Sponte, Without Providing HCNA Notice and an Opportunity To Be Heard Assuming that this Court, upon de novo review of the Superior Court’s dismissal of
HCNA’s claims based on the German Forum Selection Clause, makes a determination as to
whether HCNA may litigate its claims in New Hampshire, the procedural aspects of HCNA’s
appeal need not be addressed. But, in the event this Court does not decide the forum selection
issue, HCNA wishes to be heard on its argument that the Superior Court’s dismissal of its claims
was so improper as to constitute a violation of HCNA’s procedural due process rights.
The Superior Court dismissed HCNA’s claims while this action was stayed pursuant to a
Stipulation of the parties, which was approved by the Superior Court (McHugh, J.), and which
stated, in part, that:
Without prejudice to the arguments of the parties in support of, or in opposition to, dismissal or stay, and without prejudice to the right of the Defendant to re-file a Motion to Dismiss upon the conclusion of a stay, this action shall be stayed pending resolution of the issues earmarked for the August 24, 2010 hearing [in the 2006 Action].
A. 60. The issues “pending resolution” were whether hansaconsult violated the parties’
settlement protocol agreement and thus whether it should be enjoined from proceeding with its
breach of contract claims in Germany. These were the only issues pending before the Superior
Court when, sua sponte, it dismissed HCNA’s claims in the 2009 Action.
Indeed, there was no motion to dismiss pending before the Superior Court. The parties’
stipulation staying the 2009 Action plainly stated that hansaconsult could “re-file a Motion to
{W2299740.1} 26
Dismiss upon the conclusion of a stay,” A. 60, which hansaconsult had not done. Thus, HCNA
had no notice that the Superior Court would act on the withdrawn motion to dismiss, and it had
no opportunity to object to that motion.
The Superior Court’s sua sponte dismissal of HCNA’s claims violated HCNA’s
procedural due process rights under the U.S. Constitution and New Hampshire Constitution. See
U.S. Constitution, amend. XIV, § 1; New Hampshire Constitution, Pt. 1, Art. 15. As this Court
has observed:
For more than a century, the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.
Vermont Nat. Bank v. Taylor, 122 N.H. 442, 446 (1982) (citation omitted).
Accordingly, to the extent that the Court does not reach the substantive issue of forum
exclusivity, it should nevertheless reverse the Superior Court’s dismissal of HCNA’s claims, so
that HCNA may be given an opportunity to present its Objection to hansaconsult’s motion to
dismiss and “be heard” in advance of a ruling on the motion to dismiss.
CONCLUSION
For the foregoing reasons, this Court should reverse the Order dismissing the 2009
Action and remand this case to the Superior Court.
REQUEST FOR ORAL ARGUMENT
HCNA requests oral argument not to exceed fifteen (15) minutes, to be presented by its
counsel, Lawrence M. Edelman or Michele E. Kenney.
