APL-
New York County Clerk's Index No. 653048/13
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APPELLATE DIVISION- FIRST DEPARTMENT
DEUTSCHE BANK NATIONAL TRUST COMPANY, solely in its capacity as Trustee of
the HARBOR VIEW MORTGAGE LOAN TRUST 2007-7,
Plaintiff-Appellant,
against
FLAGSTAR CAPITAL MARKETS CORPORATION,
Defendant.
and
QUICKEN LOANS, INC.,
Defendant-Respondent.
AMICUS CURIAE BRIEF FOR WMC MORTGAGE, LLC
Stephen L. Ascher
JENNER & BLOCK LLP
919 Third A venue, 3 gth Floor
New York, NY 10022
(212) 891-1600
sascher@jenner .com
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF INTEREST .................................................................................. l
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT ............................................................................................................. 6
I. ACE Mandates Dismissal ofDBNTC's Claims ................................................... 6
A. ACE Holds That Claims Concerning Breaches of Representations
and Warranties Accrue At the Time of the Breach ............................... 6
B. Section 9.03 Is a Procedural Condition Precedent That Does Not
Delay the Running of the Statute of Limitations .................................. 7
II. New York Public Policy Would Preclude Enforcement of Any
Agreement To Delay the Running of the Limitations Period ....................... 11
CONCLUSION ........................................................................................................ 16
1
TABLE OF AUTHORITIES
Page(s)
CASES
ACE Sec. Corp. v. DB Structured Prods., Inc.,
No. 650980/2012 (N.Y. Sup. Ct. N.Y. Cnty. Feb. 8, 2013) ............................... 11
ACE Sec. Corp. v. DB Structured Prods., Inc.,
112 A.D.3d 522 (1st Dept. 2013) ......................................................................... 2
ACE Sec. Corp. v. DB Structured Prods., Inc.,
25 N.Y.3d 581 (2014) ................................................................. 2, 4, 6, 7, 8, 9, 11
Bank of NY Mellon, Solely as Sec. Adm 'r for JP. Morgan
Acquisition Trust Series 2006-WMC2 v. WMC Mortg., LLC,
17 N.Y.S.3d 613 (N.Y. Sup. Ct. N.Y. Cnty. 2015) ...................................... 1, 3, 5
Bank of New York Mellon as Sec. Adm 'r for JP. Morgan Acquisition
Trust Series 2006-WMCJ v. WMC Mortg.,
No. 653099/2014 (N.Y. Sup. Ct. N.Y. Cnty.) .................................................. 1, 5
Bayridge Air Rights, Inc. v. Blitman Constr.
80 N.Y.2d 777 (1992) ..................................................................................... 5, 14
Bulova Watch Co. v. Celotex Corp.,
46 N.Y.2d 606 (1979) ........................................................................................... 9
Deutsche Bank Nat'/ Trust Co. v. Quicken Loans Inc.,
No. 13 Civ. 6482 (PAC), 2014 WL 3819356 (S.D.N.Y. Aug. 4,
2014) ..................................................................................................................... 3
Deutsche Bank Nat'/ Trust Co. v. Quicken Loans, Inc.,
No. 14-3373-cv, 2015 WL 7146515 (Nov. 16, 2015) .......................................... 3
John J Kassner & Co. v. City of NY.,
46 N.Y.2d 544 (1979) ............................................................................... 5, 11, 12
Lehman XS Trust, Series 2006-4N, ex rei. U.S. Bank Nat'/ Ass 'n v.
Greenpoint Mortg.Funding, Inc., No. 14-399, _F. App'x _,
2016 WL 1039917 (2d Cir. Mar. 16, 2016) .............................................. 1, 3, 5, 9
11
Lehman XS Trust, Series 2006-4N ex rei. U.S. Bank Nat. Ass'n v.
Greenpoint Mortgage Funding, Inc., 991 F. Supp. 2d 4 72, 4 79
(S.D.N.Y. 2014) .................................................................................................... 9
Lehman XS Trust, Series 2006-GP2 v. Greenpoint Mortg. Funding,
Inc., Nos. 12 Civ. 7935 (ALC) (HBP), 12 Civ. 7942 (ALC)(HBP),
2014 WL 1301944 (S.D.N.Y. Mar. 31, 2014) ................................................ 3, 12
Marx v. Gen. Revenue Corp.,
133 S. Ct. 1166 (2013) ........................................................................................ 10
US. Bank Nat 'lAss 'n, Solely as Trustee of the JP. Morgan Alt. Loan
Trust 2007-A2 v. Greenpoint Mortg. Funding, Inc.,
No. 651954/2013,2015 WL 915444 (N.Y. Sup. Ct. N.Y. Cnty.
Mar. 3, 20 15) ................................................................................................... 3, 12
STATUTES
N.Y. Gen. Oblig. Law§ 17-103 ......................................................................... 12, 13
OTHER AUTHORITIES
CPLR § 2106 .............................................................................................................. 4
CPLR § 2215 .............................................................................................................. 2
iii
STATEM-ENT OF INTEREST
WMC ... ,.....",..... ...... ~ LLC ("WMC") was an originator of mortgage loans that
were securitized and yielded certificates that were sold as investments. In suits like
have alleged that WMC breached representations and warranties WMC made
regarding the loans, and many of these plaintiffs have asserted these claims
belatedly. WMC therefore has a direct interest in the limitations issues presented in
this appeal, and has extensively briefed those issues in other cases.
In particular, WMC is party to an appeal in this Court presenting the same
lhnitations questions where Justice Kornreich dismissed an action against WMC on
timeliness grounds. Bank of NY Mellon, Solely as Sec. Adm 'r for J.P. Morgan
Acquisition Trust Series 2006-WMC2 v. WMC Mortg., LLC, 17 N.Y.S.3d 613, 617
(N.Y. Sup. Ct. N.Y. Cnty. 2015) (Kornreich, J.) (notice of appeal filed but not yet
perfected). WMC is also currently litigating the sa1ne timeliness issue in another
case where WMC's motion to dismiss is pending. See Bank of NY Mellon, Solely
as Sec. Adm 'r for J.P. Morgan Acquisition Trust Series 2006-WMC3 v. WMC Mort.,
LLC, No. 653099/2014. And WMC was also granted leave to file an amicus brief
in the Second Circuit where it successfully argued that the plaintiffs claims were
untimely under a contract similar to this one. See Lehman XS Trust, Series 2006-
1
4N, ex rei. US. Bank Nat'! Ass'n v. Greenpoint Mortg. Funding, Inc., No. 14-399,
F. App'x _,No. 14~399-cv, 2016 WL 1039917 (2d Cir. Mar. 16, 2016).
SUMMARY OF ARGUMENT
Both this Court and the Court of Appeals have squarely held that repurchase
suits filed more than six years after an alleged breach of representations and
warranties are time-barred. See ACE Sec. Corp. v. DB Structured Prods., Inc., 112
A.D.3d 522 (1st Dept. 2013); ACE Sec. Corp. v. DB Structured Prods., Inc., 25
N.Y.3d 581 (2014). In so holding, these courts have recognized that such
"representations and warranties" are breached, if ever, at "the moment the [parties'
agreement] was executed," and that a clai1n of breach accordingly must be brought
within six years of that date. ACE, 25 N.Y.3d at 598.
DBNTC contends that those decisions are inapplicable here because of so-
called "accrual'' language in § 9.03 of its contract with Quicken. DBNTC argues
that this language delays the limitations period from running until DBNTC makes a
repurchase demand that is rejected. In other words, DBNTC argues that even if it
waited decades after an alleged breach of representations and warranties to file suit,
claim would be thnely so long as DBNTC filed within six years of demanding
repurchase.
Every New York court to have considered this kind of provision, including
the Second Circuit in a suit between these very parties, has rejected DBNTC's
2
argument. See Deutsche Bank Nat'! Trust Co. v. Quicken Loans, Inc., No. 14-3373-
cv, 2015 WL 7146515 at *4-5 (2d Cir. Nov. 16, 2015) ("Thus, notwithstanding the
'shall accrue' language ... the Trustee has not persuaded us that the instant contract
functions differently than that considered by the New York Court of Appeals in
ACE."); Lehman XS Trust, Series 2006-4N, 2016 WL 1039917 (2d Cir. Mar. 16,
2016), affg, LehmanXS Trust v. Greenpoint Mortg. Funding, Inc., No. 13 Civ. 4707
(SAS), 991 F. Supp. 2d 472, 478-79 (S.D.N.Y. 2014); Bank of NY Mellon , 17
N.Y.S. at 617; U.S. Bank Nat'! Ass 'n, Solely as Trustee of the JP. Morgan Alt. Loan
Trust 2007-A2 v. Greenpoint Mortg. Funding, Inc., No. 651954/2013, 2015 WL
915444, at *6 & n.4 (N.Y. Sup. Ct. N.Y. Cnty. Mar. 3, 2015); Lehman XS Trust,
Series 2006-GP2 v. Greenpoint Mortg. Funding, Inc., Nos. 12 Civ. (ALC)
(HBP), 2014 WL 1301944, at (S.D.N.Y. Mar. 31, 2014); Deutsche Bank Nat'/
Trust Co. v. Quicken Loans Inc., No. 13 Civ. 6482 (PAC), 2014 WL 3819356, at *3
(S.D.N.Y. 4, 2014).
Quicken has ably explained why those decisions are correct and why this
Court should not depart from that unbroken line of authority. WMC writes to
emphasize two points.
First, DBNTC is wrong when it clain1s that this contract has a materially
different structure from the one in ACE. Under ACE, the dispositive limitations
question is whether the contract provides that the plaintiff has not been injured until
3
it makes a demand that is rebuffed (in which case the limitations period does not
begin running until the detnand is made), or whether the contract merely requires the
plaintiff to 1nake a demand before it can sue to remedy a pre-existing breach (in
which case the limitations period runs from the date of that pre-existing breach). 25
N.Y.3d at 597.
The plain text of the provision upon which DBNTC relies shows that this is
the second kind of contract. Just like the remedial provision in ACE, § 9.03 expressly
states that it provides a ren1edy for a "breach of any representations and warranties."
And just like in ACE, that breach of representations and warranties occurred, if ever,
at the tin1e the parties made their deal. The accrual language to which DBNTC
points does nothing more than establish that DBNTC has no right to sue until it
makes a demand to cure that breach. The critical point for limitations purposes,
however, is not that DBNTC must n1ake a demand before it can sue, but that the
demand "seeks a remedy for a preexisting wrong." 25 N.Y.3d at 597. Under ACE,
that makes § 9.03 's detnand requirement a classic "procedural" condition precedent
that does not delay the running of the statute of liinitations. !d.
Second, even if this Court were to conclude that the parties did intend that the
statute of limitations would not begin to run until potentially years after the breach
occured, that agreement would squarely violate long-standing New York public
policy in at least two ways, and would thus be unenforceable. In the first place, the
4
New York Court Appeals has held that extension agreements "made prior to the
accrual of the cause action ... have 'no effect'" because they violate New York's
"public policy" repose." John J Kassner & Co. v. City ofN Y., 46 N.Y.2d
544, 551-552 (1979). DBTNC's interpretation does precisely that by reading§ 9.03
as an ex ante agreement to delay the limitations period from running until a demand
is made.
Moreover, New York public policy separately forbids extending limitation
periods by an indefinite amount of time. See Bayridge Air Rights, Inc. v. Blitman
Constr. Corp., 80 N.Y.2d 777, 779 (1992) (citing N.Y. Gen. Oblig. Law§ 17-103).
DBNTC's interpretation would run afoul of this prohibition by delaying the
limitations period for an unknown amount of time, i.e., until DBNTC chose to make
a demand.
In short, because the parties did not agree to delay the start of the limitations
period beyond the time of the alleged breach, and because any such agreement would
violate New York policy regardless, WMC respectfully urges this Court to affirm
the judgment below and join the unbroken line of New York authority rejecting
DBNTC's arguments.
5
ARGUMENT
I. ACE Mandates Dismissal of DBNTC's Claims.
DBNTC does not dispute that its claims are untimely if ACE governs this case.
Instead, DBTNC argues that this contract is n1aterially different from the one at issue
in ACE because it contains an accrual clause. That is a distinction without a
difference. Every New York court that has considered the question has held that a
provision like § 9.03 does not change the date on which the statute of limitations
begins to run.
A. ACE Holds That Claims Concerning Breaches of Representations
and Warranties Accrue At the Time of the Breach.
ACE's core holding is that where a claim is based on a breach of
representations and warranties, that breach occurs at the time the representations and
warranties are made-here, no later than the Closing Date: "Where, as in this case,
representations and warranties concern the characteristics of their subject as of the
date they are made, they are breached, if at all, on that date." ACE, 25 N.Y.3d at
5 89. ACE further held that the limitations period begins running at the time the
representations and warranties are n1ade even where a contract provides that a
plaintiff must clear procedural hurdles-such as notice, demand, opportunity to cure,
and failure to repurchase-before bringing suit. In so holding, ACE differentiated
between a substantive condition precedent and a procedural condition precedent.
With a substantive condition precedent, there is no "legal wrong" until the plaintiff
6
satisfies the conditions laid out in the contract. !d. at 597. Conversely, with a
procedural condition precedent, the "legal wrong has occurred" already, and the
conditions are merely requirements the plaintiff must satisfy before suit. !d.
The conditions in ACE were procedural. ''The Trust suffered a legal wrong at
the moment [the seller] allegedly breached the representations and warranties." Id.
at 597. At that moment, a cause of action existed, but "the [T]rust was just limited
in its remedies for that breach'' until it cleared the procedural hurdles set out in the
contract. !d. at 598. ACE therefore distinguished procedural conditions~including
cure or repurchase obligations-from situations in which "parties ... contractually
agree to undertake a separate obligation, the breach of which does not arise until
some future date." !d. at 594. .. .... ""'."""'"'clear that repurchase obligations do "not
fit this description" because they do not "expressly guarantee[]future performance."
Id. Instead, the repurchase obligations at issue in ACE were "dependent on, and
indeed derivative of, [the] representations and warranties," which "were breached,
if at all, on'' the closing date. Id. at 595. Because the repurchase obligations did not
represent a "separate and distinct" promise, they did not serve to delay the running
of the statute of limitations. I d. at 594.
B. Section 9.03 Is a Procedural Condition Precedent That Does Not
Delay the Running of the Statute of Limitations.
Despite the Court of Appeals' decision in ACE, DBNTC contends that § 9.03
sets forth a substantive condition precedent that deferred accrual of the statute of
7
limitations until Quicken failed to repurchase upon demand. DBNTC Br. 18-20.
That is incorrect because here, as in ACE, the "legal wrong" is the breach of
representations and warranties. Indeed, that is precisely what the parties expressly
agreed was the legal wrong in their contract, which provides "[a]ny cause of action
against the Seller or the Servicer, as applicable, relating to a breach of any
representations and warranties . . . shall accrue upon" a demand and failure to
repurchase a breaching loan. MLSA § 9.03 (emphasis added). The parties could
hardly have been clearer that the "breach" is the "breach of any representations and
warranties," rather than the failure to repurchase following a demand.
DBNTC has no persuasive response to this contractual language. It repeatedly
emphasizes that DBNTC cannot sue unless and until the requirements of§ 9.03 are
satisfied. E.g., DBNTC Br. 21. But mandatory cotnpliance is the hallmark of both
procedural conditions precedents to suit and substantive conditions precedent. Both
kinds of conditions bar litigation until they are satisfied. The key difference between
the two kinds of preconditions is whether the breach exists prior to the conditions
being satisfied (in which case they are procedural) or whether there is no breach until
those conditions are satisfied (in which case they are substantive). ACE, 25 N.Y.3d
at 597. Here, the contract makes perfectly clear that the conditions are predicates to
suit for a "breach of any representations and warranties," i.e., a breach that existed,
if ever, at the time the contract closed. In other words, the "Accrual Provision is a
8
pre-suit remedial provision that is neither an element of the breach of contract claim,
nor grounds for a separate breach of contract claim." Lehman XS Trust, Series 2006-
4N ex rei. US. Bank Nat. Ass'n v. Greenpoint Mortgage Funding, Inc., 991 F. Supp.
2d 472,479 (S.D.N.Y. 2014).
DBNTC also invokes ACE~s observation that parties may "contractually agree
to undertake a separate obligation, the breach of which does not arise until some
future date.'~ DBNTC Br. 16 (quoting ACE, 25 N.Y.3d at 597). But that observation
does not apply to this case any more than it applied to the contract in ACE. In the
portion of ACE that DBNTC quotes, the Court of Appeals was discussing cases like
Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606 (1979), in which a party n1akes
a "separate and distinct promise'' to remedy a wrong that may occur in the future-
not a promise to remedy a wrong that took place, if at all, on the day the contract
goes into effect. ACE, 25 N.Y.3d at 597. To be sure, the parties here could have
structured their contract such that Quicken would act (and be compensated) as an
Insurer. Under such a contract, Quicken would not merely have 1nade
representations and warranties, but would have also agreed to compensate the
DBNTC for any losses upon the default of a loan without regard for the reason for
the default. That kind of contract would have been akin to the "separate obligation"
that ACE cited in Bulova to maintain the roof if it leaked for any reason in the future.
9
And under that kind of contract, Quicken might not have breached the contract
unless DBNTC made a de1nand for payment that Quicken refused.
But that is not the deal the parties struck here. Quicken made specific, limited
representations and warranties, and the repurchase protocol kicked in only after a
breach of those representations and warranties, for the sole purpose of imposing
procedural requirements that DBTNC had to tneet before obtaining a remedy for a
breach of those representations and warranties. Under ACE, that makes the
repurchase protocol precisely the kind of procedural condition that does not delay
the limitations period under New York law.
None DBNTC's other arguments for interpreting § 9.03 as a substantive
condition precedent hold water. For example, DBNTC argues that unless § 9.03 is
interpreted to delay the running of the limitations period, there would have been no
reason to adopt it given the other provisions in the contract requiring notice. DBNTC
Br. 23-24. That is not true. The parties were free to adopt § 9.03 in order to make
crystal clear that a suit for breach of representations and warranties could be brought
only after the stated conditions were satisfied.
1
Cf Marx v. Gen. Revenue Corp.,
I Indeed, the parties' decision to provide clarity has proven prescient given that
plaintiffs in other cases without the accrual language have routinely argued that they
were not obligated to give pre-suit notice. See, e.g., Pl.'s Mem. in Opp. to Mot. to
Dismiss, Co1p. v. DB Structured Prods., Inc., No. 650980/2012 (N.Y. Sup.
Ct., N.Y. Cnty. Feb. 8, 2013), available at 2013 WL 2286829 (arguing that
individualized notice is not necessary).
10
133 S. Ct. 1166, 11 (2013) ("[A] phrase is not superfluous if used to 'remove ...
Nor can DBNTC transform § 9.03 into a substantive condition precedent by
insisting that investors would have wanted ''repurchase obligations [to be] judicially
enforceable for the 30-year life of the Trust." DBNTC Br. 27. This is precisely the
same policy argument that the Court of Appeals heard-and soundly rejected-in
ACE. See ACE, 25 N.Y.3d at 596-97 (expressing "extreme[] reluctance" to
"transform[] a standard breach of contract remedy, i.e., damages, into one that lasted
for the life of the investment"). ACE thus confirms that under § 9.03, the limitations
period for DBTNC's claims began to run at the time of those alleged breaches, when
DBNTC suffered its alleged legal wrong.
II. New York Public Policy Would Preclude Enforcement of Any
Agreement To Delay the Running of the Limitations Period.
Even if this Court concluded that the parties intended § 9.03 to delay the
running of the limitations period, DBNTC's suit would still be untitnely because any
such agreement would be unenforceable as a matter of public policy.
The New York Court of Appeals has explained that extension agreements
"made prior to the accrual of the cause of action ... have 'no effect'" because they
violate New York's "public policy" of "giving repose." John J Kassner & Co. v.
City ofN. Y, 46 N.Y.2d 544, 551 (1979); see also id. at 522 ("[Because the provision]
was adopted at the inception of the contract and not after the cause of action had
11
accrued, it not serve to extend the Statute of Limitations."). This prohibition
on ex ante extensions is codified in General Obligations Law§ 17-103, which states
that parties may extend the time for bringing suit only "after the accrual of the cause
of action." Gen. Oblig. § 17-103(1) (emphasis added). Any extension made in
violation of§ 17-103 "has no effect." Jd. § 17-103(3); accord Kassner, 46 N.Y.2d
at 552.
Accordingly, even if§ 9.03 was intended to extend the limitations period "at
the inception of the contract" (and the plain language shows that it was not), such an
extension would have "no effect." Kassner, 46 N.Y.2d at 552. As Justice Kornreich
concluded in a similar case, a purported accrual provision "cannot serve to delay the
accrual of the breach of contract" because an agreement to "extend the Statute of
Limitations ... tnade at the inception of liability ... is unenforceable." WMC2 slip
op. 7 (quoting Kassner, 46 N.Y.2d at 551). Judge Scheindlin ofthe Southern District
of New York likewise rejected a plaintiffs accrual argument because ''parties may
not contractually adopt an accrual provision that effectively extends the statute of
limitations before any claims have accrued." U.S. Bank, 2015 WL 915444, at *5
(citing Kassner, 46 N.Y.2d at 551 and holding that "[t]he accrual provision cannot
serve to delay the accrual of the breach of contract cause of action for purposes of
the statute of limitations"); Lehman XS Trust, Series 2006-GP2, 2014 WL 1301944,
at *3 (''the accrual provision cannot extend the statute of limitations").
12
DBNTC offers this Court a long discussion of the Kassner decision, DBNTC
Br. 29-33, but its argutnent boils down to a claim that its position does not violate
Kassner because DBNTC supposedly does not "seek to extend the statute of
limitations-not by a single day" because it merely makes the claim accrue at a later
time. DBNTC Br. 33. But each of the plaintiffs in the cases just discussed could
have made that same argument, which is simply incorrect. DBNTC is suing for a
"breach" of Quicken's representations and warranties. Under ACE, that breach
occurred (if ever), and the statute of limitations began to run, by the closing date of
the parties' contract. If§ 9.03 is read to delay the limitations period from running
on that claim of breach until a demand is made, it would extend the statute of
limitations in violation of Kassner and the public policy considerations it embodies.
DBNTC's interpretation of§ 9.03 also runs afoul of a separate prohibition in
New York law: that extensions (even after the accrual of the action) cannot be for
an indefinite period of time. Instead, parties tnay only to extensions that are
finite and for a period less than the original limitations period (i.e., six years). See
Gen. Oblig. § 17-103(1) (permitting an extension "within the time that would be
applicable if the cause of action had arisen at the date of the promise [to extend the
limitations period], or within such shorter tin1e as n1ay be provided in the promise").
For example, in Bayridge Air Rights, Inc. v. Blitman Constr. Corp., 80 N.Y .2d
777, 779 (1992), the parties signed an agreement under which the limitations period
13
was "extended so as to commence upon final payment to [the defendant] from an
escrow account." The Court of Appeals held that this contractual provision was
"void and unenforceable" because it "extend[ ed] the lin1itations period to an
indefinite date in the future in contravention of the six-year maximum provided by
the statute [for breach of contract actions]." /d. at 779-80 (emphasis added).
Reading § 9.03 to extend the limitations period to whenever DBNTC demanded
repurchase would mean that the lhnitations period would run not just for another six
years, but throughout the entire life of a 30-year mortgage loan. If the parties had
contracted to allow such a belated claim, it would impermissibly extend the
limitations period to "an indefinite date in the future," and therefore would be void
for that reason as well. Bayridge, 80 N.Y.2d at 779.
DBNTC claims that Bayridge is inapplicable because ''it concerned a tolling
agreement entered into after a cause of action arose." DBNTC Reply Br. at 13. But
that was not relevant to the Court's analysis. To be sure, if the agreement had been
entered into before the cause of action arose, the agreement also would have violated
Kassner. See supra. But Bayridge dealt with a distinct problem that the agreement
"extend[ ed] the limitations period to an indefinite date in the future." !d. at 779-80.
That is precisely what § 9.03 would do if DBNTC's interpretation were accepted:
the limitations period would begin at whatever point DBNTC's repurchase demand
ultimately arrived.
14
Accordingly, even if the parties had intended to extend the limitations period
through§ 9.03, that agreement would be unenforceable under well-established New
York law.
15
For the foregoing reasons,
affirm the judgment below.
CONCLUSION
.. ~.~ .. ... ,. .... WMC respectfully requests that this
Respectfully submitted,
Stephen L. Ascher
JENNER & BLOCK LLP
919 Third A venue, 3 gth Floor
New York, NY 10022
(212) 891-1600
sascher@j enner .com
16
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