In re Cendant Corp.
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MARTIN DEUTCH, Derivatively on Behalf of Cendant Corp., Appellant
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 98-cv-01664) District Judge: Hon. William H. Walls
Argued May 22, 2001
(Filed: August 28, 2001)
Brett Cebulash
Garwin, Bronzaft, Gerstein & Fisher LLP
New York, NY 10036
Elwood S. Simon
Elwood S. Simon & Associates
Birmingham, MI 48009
David M. Taus
Francis J. Devito
Hackensack, NJ 10166-0153
Richard Brualdi
Law Offices of Richard B. Brualdi
New York, NY 10006
Thomas G. Shapiro
Shapiro, Haber & Urmy
Boston, MA 02109
Attorneys for Appellant Martin Deutch
Daniel L. Berger (Argued)
Max W. Berger
Jeffrey N. Leibell
Bernstein, Litowitz, Berger & Grossmann
New York, NY 10019
Jeffrey W. Golan
Leonard Barrack
Gerald J. Rodos
Barrack, Rodos & Bacine
Philadelphia, PA 19103
Attorneys for Appellee California Public Employees’ Retirement System, et al.
Samuel Kadet (Argued)
Jonathan J. Lerner
Joseph N. Sacca
Skadden, Arps, Slate, Meagher &
New York, NY 10036
Carl Greenberg
Michael M. Rosenbaum
Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, P.C.
Short Hills, NJ 07078-0999
Attorneys for Appellee Cendant Corporation
James G. Kreissman (Argued)
Jacob S. Pultman
Simona G. Strauss
Simpson, Thacher & Bartlett
New York, NY 10017
Herbert J. Stern
Joel M. Silverstein
Stern & Greenberg
Roseland, NJ 07068
Attorneys for Appellees HFS Inc. Directors
Greg A. Danilow (Argued)
Weil, Gotshal & Manges LLP
New York, NY 10153
Alan N. Salpeter
Mayer, Brown & Platt
Chicago, IL 60603
Douglas S. Eakeley
Lowenstein Sandler
Roseland, NJ 07068
Cadwalader, Wickersham & Taft
New York, NY 10038
Sills Cummis Radin Tischman Epstein & Gross, P.A.
Newark, NJ 07102-5400
Attorneys for Appellees CUC Directors
SLOVITER, Circuit Judge.
Martin Deutch appeals from the District Court‘s judgment and orders approving the settlement of a securities fraud class action brought against Cendant Corporation, 28 individual defendants, and Ernst & Young, an accounting firm. Under the settlement, Cendant agreed to pay $2.85 billion in cash to the class and Ernst & Young agreed to pay $335 million to the class. In addition, Cendant and certain of the individual defendants promised to pay the class 50% of any recovery obtained in their cross-claims against Ernst & Young. In exchange, the class agreed to release any and all claims that could have been brought against the defendants in the class action.
A number of class members objected to the settlement. Deutch, who was not a member of the class but rather a current shareholder of Cendant, also objected and moved to intervene as both a current shareholder and as a derivative action plaintiff. In two separate opinions filed on August 15, 2000, the District Court rejected the objections of the class members and Deutch respectively and approved the settlement.
The approvals generated a flurry of appeals. The appeals of the class members are being disposed of in a separate opinion, holding, inter alia, that the District Court did not abuse its discretion in rejecting the class members’ objections to the settlement and plan of allocation. See In re Cendant Corp. Sec. Litig., Nos. 00-2520, 00-2683, 00-2708, 00-2709, 00-2733, 00-2734, 00-2769 and 00-3653 (3d Cir. Aug. 28, 2001). In this opinion, we turn to Deutch‘s appeal, which presents distinct issues of law relating to a current shareholder seeking to present claims on behalf of the settling corporation.
Many of the facts set forth in the following section of this opinion will also be set forth and discussed in greater length in the principal opinion dealing with the appeals of the objecting class members. The abbreviated facts included here are those necessary to put Deutch‘s contentions in context.
A. Discovery of the Misconduct
On December 17, 1997, CUC International, Inc. (“CUC“) merged with HFS Inc. (“HFS“). As part of the merger, shareholders of HFS stock were issued shares of CUC common stock pursuant to a Registration Statement dated August 28, 1997 and a Joint Proxy Statement/Prospectus. The surviving corporation was renamed Cendant Corp. (“Cendant“). Cendant is now one of the world‘s foremost consumer and business service companies, providing shopping, dining, travel, mortgage, and real estate brokerage services. It owns, among оther things, Century 21, Avis, and the Ramada and Howard Johnson hotel franchises.
On March 31, 1998, Cendant filed a Form 10-K Annual Report with the Securities Exchange Commission (“SEC“), which included its 1997 financial statements. On April 15, 1998, Cendant announced that it had discovered accounting irregularities in certain former CUC business units and that the annual and quarterly financial statements for 1997 would be restated. Cendant also suggested that financial statements from earlier periods might need to be corrected as well. The next day, Cendant‘s stock fell from $35 5/8 a share to $19 1/16 a share - a 47% drop. The Audit Committee of Cendant‘s Board of Directors hired the law firm of Willkie Farr & Gallagher to conduct an independent investigation into the irregularities, and the law firm in turn hired the accounting firm of Arthur Andersen LLP to assist in the investigation. On July 14, 1998, Cendant announced that CUC‘s financial statements for 1995 and 1996 would also be restated. Following this announcement, Cendant‘s stock dropped to
B. The Securities Fraud Class Action
Numerous plaintiffs claiming to have acquired CUC or Cendant securities filed lawsuits against Cendant and others alleging, inter alia, federal securities law violations. By an order of the Judicial Panel on Multidistrict Litigation the suits were transferred to the United States District Court for the District of New Jersey and then consolidated. The District Court appointed the California Public Employees’ Retirement System, the New York State Common Retirement Fund, and the New York City Pension Funds as Lead Plaintiff.1 See In re Cendant Corp. Litig., 182 F.R.D. 144 (D.N.J. 1998). The District Court later approved the law firms of Barrack, Rodos & Bacine and Bernstein Litowitz Berger & Grossman LLP to be Lead Counsel for the class. See In re Cendant Corp. Litig., 191 F.R.D. 387 (D.N.J. 1998).
C. The Amended and Consolidated Class Action Complaint
On December 14, 1998, the Lead Plaintiff filed an amended and consolidated class action complaint (“Amended Complaint“) on behalf of all рersons and entities who purchased or acquired Cendant or CUC publicly traded securities, excluding the PRIDES securities,2 during the period of May 31, 1995 through August 28, 1998
The Amended Complaint alleged that Cendant (as successor to CUC), E&Y, and certain of the CUC and HFS Individual Defendants made numerous false and misleading statements during the Class Period, in violation of
The Amended Complaint alleged that all of the defendants except Anne Pember and Scott Forbes caused the August 28, 1997 Registration Statement issued in conjunction with the CUC/HFS merger to contain false and misleading statements, in violation of
D. Class Certification, Notice, and Settlement Negotiations
Concurrent with the filing of the Amended Complaint, Lead Plaintiff filed a motion to certify the class pursuant to
On December 7, 1999, several months after notice to the class of the pendency of the class action, Cendant, the HFS Individual Defendants, and the Lead Plaintiff advised the District Court that they had agreed to a settlement. Shortly thereafter, E&Y and the Lead Plaintiff informed the court that they too had settled. On March 17, 2000, the settling parties executed a Stipulation of the Settlement.
E. Terms of the Settlement and Plan of Allocation
The settlement with Cendant and the HFS Individual Defendants provides for a payment by Cendant to the class of $2,851,500,000 in cash, provides for an additional payment of 50% of any recovery by Cendant and the HFS Individual Defendants in their cross-claims against E&Y, and imposes certain corporate governance changes on Cendant. These changes include constituting Cendant‘s Board of Directors with a majority of independent directors, constituting the Audit, Nominating, and Compensation Committees of the Board entirely with independent directors, and providing for the annual election of аll directors. In exchange, the class members would release all claims that were filed or could have been filed in the action against Cendant, the HFS Individual Defendants, and the CUC Individual Defendants.
As part of the Stipulation of Settlement, Cendant, the HFS Individual Defendants, and the Lead Plaintiff agreed to
The E&Y settlement provides for a cash payment of $335,000,000 to the class. In conjunction with the Cendant and E&Y settlement, the Lead Plaintiff proposed a Plan of Allocation covering what each class member would receive from the settlement. Neither the E&Y settlement nor the Plan of Allocation is at issue in Deutch‘s appeal.
F. Settlement Notice, Objections, and Approval
The District Court granted preliminary approval of both settlements on March 29, 2000, and Lead Plaintiff proceeded with the required notices of settlement of class actions, mailing over 478,000 to class members and publishing notices in national newspapers and media. Only four class members objected to the settlements and/or the Plan of Allocation.
Martin Deutch, who was not a member of the class but rather a current shareholder of Cendant, also objected and moved to intervene as a current shareholder and a derivative action plaintiff.5 Deutch objected on the following grounds:
Cendant was not adequately represented in the class action because 13 of the 14 members of Cendant‘s board of directors that negotiated and approved the settlement were also defendants in the class action and therefore operated under a conflict of interest; - The settlement was grossly unfair to Cendant and its current shareholders because it eliminated valuable contribution claims against the individual defendants without any meaningful payment into the settlement by these defendants;
- The settlement failed to allocate the portion of Cendant‘s $2.85 billion settlement that was
and wasting corporate assets. Deutch also alleged that Bear Stearns Companies, Inc. and its subsidiary, Bear Stearns and Co., Inc., were grossly negligent in advising HFS on the Cendant merger.
Several defendants moved tо dismiss the complaint. On August 9, 1999, the District Court held that Deutch need not have made a demand to Cendant‘s board of directors to bring that action because any such demand would have been futile. However, the court dismissed the claims against the Bear Stearns defendants on the basis that Deutch lacked standing to sue on behalf of HFS. See In re Cendant Corp. Derivative Action Litig., 189 F.R.D. 117 (D.N.J. 1999).
After the Cendant settlement was announced, Deutch moved for partial summary judgment against the individual defendants, arguing that these defendants violated
(4) The settlement constituted an illegal indemnification of individual officers and directors of Cendant, CUC, and HFS;
(5) The Notice of Settlement was defective because it did not inform current Cendant shareholders that certain derivative claims would be compromised and that contribution claims by Cendant against the HFS defendants would be barred.
On June 28, 2000, the District Court conducted a fairness hearing at which thе objectors were given an opportunity to be heard. On August 15, 2000, the District Court issued two opinions rejecting the objections and approving the Cendant and E&Y settlements and the Plan of Allocation. See In re Cendant Corp. Sec. Litig., 109 F. Supp. 2d 235 (D.N.J. 2000) (rejecting the class members’ objections); In re Cendant Corp. Sec. Litig., 109 F. Supp. 2d 273 (D.N.J. 2000) (rejecting Deutch‘s objections).
In the corresponding judgment approving the Cendant settlement, the court ordered that “[a]ll actions and claims for contribution are permanently barred, enjoined and finally discharged (i) as provided by
Deutch filed a timely appeal. On appeal, he makes the following arguments:
(1) The District Court erred by refusing to consider whether the settlement was fair to Cendant, where the corporation was effectively unrepresented in connection
(2) The District Court erred by entering a contribution bar order in favor of the HFS Individual Defendants without first determining whether their payment into the settlement was sufficient to extinguish their liability;
(3) The District Court failed to analyze the fairness or adequacy of the HFS Defendants’ settlement separately in order to ensure that the settlement did not impair the rights of Cendant, which will lose valuable contribution rights;
(4) The District Court erred by denying Deutch‘s motion to intervene as of right under
(5) The District Court erred by approving the Notice of Settlement which failed to notify current Cendant shareholders that Cendant‘s contribution claims were being abrogated under the settlement;
(6) The District Court allowed Cendant to assume the bulk of the settlement payment, thereby permitting an illegal indemnification of individual defendants for the substantial federal securities law claims pending against them;
(7) The District Court failed to determine what portion of the settlement was attributable to
II. DISCUSSION
A. Jurisdiction and Standard of Review
We have jurisdiction under
B. Relevance of Settlement‘s Fairness, Reasonableness, and Adequacy to Cendant
Deutch‘s principal objеction to the settlement is that the District Court evaluated it without considering Cendant‘s interests. Deutch contends that the District Court was required by
The District Court rejected Deutch‘s view of its responsibility. It stated that
The District Court declined to apply the “entire fairness” standard advocated by Deutch, which the court believed would require it to “substitute its judgment for the judgment of Cendant‘s board to determine whether the settlement is in the company‘s best interest.” In re Cendant Corp. Sec. Litig., 109 F. Supp. 2d at 280. Instead, it held that any claim that the Cendant settlement is unfair to Cendant and its current shareholders should be brought as a derivative action under Delaware corporate law. See id.
Deutch argues that our decision in Eichenholtz v. Brennan, 52 F.3d 478 (3d Cir. 1995), requires consideration of the interests of persons other than class members. Eichenholtz involved a securities fraud class action brought against International Thoroughbred Breeders (“ITB“), individual members of ITB‘s Board of Directors, and three registered brokers. ITB and the individual board members negotiated a settlement with the class, which contained a provision that would prevent the non-settling defendants from commencing any claim for contribution or indemnity against the settling defendants. The non-settling defendants appealed from the district court‘s approval of the settlement as being fair, reasonable, and adequate to the class and ITB.
In our opinion on appeal, we stated that “[w]here the rights of third parties are affected, it is not enough to evaluate the fairness of the settlement to the settling parties; the interests of such third parties must be considered.” Id. at 482. That is the language on which Deutch relies, but he takes it out of context. In response to the argument by the settling parties that the non-settling defendants had no standing, we held that the non-settling defendants did have standing to object because they claimed to have “suffered a cognizable prejudice by the approval of the partial settlement.” Id. at 483. We ultimately held that the non-settling defendants would not be
Cendant does not stand in the position of a non-settling defendant or an unrepresented third party whose rights are affected by the settlement. Quite the contrary. Cendant is a settling defendant. Therefore, Eichenholtz does not control our disposition of this case.
Deutch also cites to Judge Newman‘s concurrence in In re Warner Comm. Sec. Litig., 798 F.2d 35, 37 (2d Cir. 1986). In that case, a class member who still owned stock in Warner Communications, Inc. sought to overturn the district court‘s approval of a securities fraud class action settlement against Warner, one of its subsidiaries, and certain of their officers and directors. The class member argued, much like Deutch argues now, that the district court should have compelled a greater contribution from the individual defendants. The Court of Appeals for the Second Circuit affirmed the district court‘s approval of the settlement after noting that the district court‘s fiduciary duties covered the class members and not the defendants. See id. at 37.
In a separate concurring opinion, Judge Newman agreed with the majority that “normally, once a district court is satisfied that the total compensation paid to class members in settlement of a class action is fair and reasonable, the court need not be concerned as to how the defendants apportion liability for the settlement among themselves.” Id. at 38 (Newman, J., concurring). He then noted:
[I]n a case such as this, where the apportionment between corporate and individual defendants can have economic significance for a shareholder-claimant, some scrutiny of the portion contributed by a corporate defendant normally would be appropriate. In such circumstances, a settlement might well be shown to be unreasonable to a shareholder if the corporate defendant contributed so much more than a fair share as to cause a discernable incremental pro rata decline in the value of the shareholder‘s stock below the reduction attributable to a fair contribution.
To the extent that Judge Newman‘s view was that the fairness of the allocation between the corporation and other defendants is an issue to be considered in a derivative action, we agree. Deutch‘s allegations that Cendant was unrepresented in the settlement negotiations because a majority of its board of directors operated under a conflict of interest and that Cеndant‘s board members breached their duty of loyalty are best made in a shareholder derivative action. See, e.g., Wolf v. Barkes, 348 F.2d 994, 996 (2d Cir. 1965) (“A new derivative suit against management for fraud or waste in releasing corporate claims for inadequate payment can redress improper settlements even without setting them aside.“); In re Warner Comm. Sec. Litig., 618 F. Supp. 735, 753 (S.D.N.Y. 1985) (“If [the objector] believes that the settlement is unfair to Warner he should pursue his objection in the Delaware Chancery Court . . . . This Court is concerned solely with the fairness of the settlement to the class.“), aff‘d, 798 F.2d 35 (2d Cir. 1986) (noting that the Delaware Chancery Court had already resolved the issue of apportionment of the burdens of the settlement between the corporations and their officers).
Significantly, counsel for Cendant informed us at oral argument that the same counsel for Deutch in this appeal has commenced a derivative action in Delaware Chancery Court on behalf of a different Cendant shareholder. That action, entitled Resnik v. Silverman et al., Civ. A. No. 18329 (Del. Ch. filed Sept. 19, 2000), includes the allegation that 13 of the HFS Individual Defendants breached their duties of loyalty and good faith by causing Cendant to obtain releases of their personal liability when settling the class action. Thus, the derivative action plaintiff will have an opportunity to make the same argument that Deutch is trying to make here.
Deutch also argues that a state law derivative action plaintiff will face significant roadblocks to Cendant‘s recovery from the directors for their fair share of liability. He first notes that a derivative action plaintiff will have to satisfy the demand requirement. See Aronson v. Lewis, 473 A.2d 805, 811-12 (Del. 1984) (recognizing that the demand requirement “exists at the threshold, first to insure that a stockholder exhaust his intracorporate remedies, and then to provide a safeguard against strike suits“). This is a generally applicable requirement for any derivative action and does not make the derivative action inadequate. Next, Deutch complains that Delaware law allows Cendant‘s officers and directors to seek indemnification. If so, that reflects the policy of the state corporation law but does not provide a basis for objection by current shareholders to a class action settlement.
We believe that the District Court correctly identified the applicable law - under
Deutch also argues that the District Court erred by denying his motion to intervene as of right, because he had a right to intervene as a derivative action plaintiff tо protect Cendant‘s rights to contribution.7 Under
C. Allocation of the Burdens of Settlement
Deutch‘s remaining contentions stem primarily from his belief that Cendant may have paid more than its fair share of the settlement to the benefit of the HFS Individual Defendants. He argues first that the District Court should not have released the HFS Individual Defendants from certain contribution claims that could have been brought by Cendant without first determining whether the HFS Individual Defendants paid their fair share into the settlement.
The District Court‘s order approving the settlement provides that “[a]ll actions and claims for contribution are permanently barred, enjoined and finally discharged (i) as provided by
In entering the contribution bar, the District Court believed itself bound by the settlement discharge provision of the Reform Act which provides:
A covered person who settles any private action at any time before final verdict or judgment shall be discharged from all claims for contribution brought by other persons. Upon entry of the settlement by the court, the court shall enter a bar order constituting the final discharge of all obligations to the plaintiff of the settling covered person arising out of the action. The order shall bar all future claims for contribution arising out of the action -
(i) by any person against the settling covered person; and
(ii) by the settling сovered person against any person, other than a person whose liability has been extinguished by the settlement of the settling covered person.
Deutch reads the language of subsection (ii) to mean that “only a person who has paid to extinguish his own liability - i.e., one whose liability is not extinguished by the payment of another - is entitled to a contribution bar.” Br. of Appellant at 32. In his view, because the HFS Individual Defendants have not paid their fair share into the settlement, they are not entitled to a contribution bar but rather are liable for contribution claims from Cendant.
We acknowledge at the outset that there is some question as to the scope of the contribution bar imposed by the District Court. The District Court‘s order does not identify by name those parties who are covered by the contribution bar. However, in its opinion denying Deutch‘s motion to intervene as of right the court stated, “[a]ll parties concede that the HFS Individual Defendants are covered by the contribution bar for
The issue of the contribution bar is raised by Deutch because he argues that the District Court erred in imposing a contribution bar in favor of the HFS Individual Defendants without first determining if they had paid their fair share into the settlement. However, we believe this is an inappropriate time to flesh out the various uncertainties with respect to the scope of the contribution bar. Because no party has yet filed a claim for contribution, the District Court was not required to decide the issue raised here by Deutch.
Deutch argues that such a requirement is supported by the Reform Act‘s policy of favoring proportionate liability among wrongdoers. The proportionate liability provisions of the Reform Act do not support Deutch‘s argument, as they merely state that “a covered person against whom a final judgment is entered in a private action shall be liable solely for the portion of the judgment that corresponds to the percentage of responsibility of that covered person.”
Two of the cases on which Deutch relies, Eichenholtz v. Brennan, 52 F.3d 478 (3d Cir. 1995), and TBG, Inc. v. Bendis, 36 F.3d 916 (10th Cir. 1994), both involved partial settlements in which non-settling defendants would have been prejudiced if proportionate fault had not been determined. However, neither Eichenholtz nor TBG discusses the situation where the parties have negotiated a full settlement of claims, and where the rationale behind proportionate fault reduction in partial settlements (avoiding prejudice to non-settling defendants) is inapplicable. Indeed, one of the benefits of a full settlement is the avoidance of a determination of the merits. See, e.g., Young v. Katz, 447 F.2d 431 (5th Cir. 1971) (“In examining a proposed compromise for approval or disapproval under
Inapplicable here for the same reasons are United States v. Alcan Aluminum, Inc., 25 F.3d 1174 (3d Cir. 1994), and Herbst v. International Tel. & Tel. Corp., 72 F.R.D. 85 (D. Conn. 1976), where releases of contribution claims were negotiated by the parties. That the Reform Act significantly changed the law of securities fraud since Herbst and the other cases on which Deutch relies cannot be gainsaid. We therefore find no support for Deutch‘s positiоn in the cases he cites.
The District Court‘s order approving the settlement takes great care in preserving to Cendant any claims “against any current or former officers or directors of CUC, HFS or Cendant, either in the form of a cross-claim, counterclaim, third party complaint, or other form.” App. at 16. Thus, the settlement itself should not prejudice a derivative action plaintiff, and the District Court did not err in rejecting
Deutch relies on language in our decision in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975)9 to support his contention that the District Court was required to analyze the value of the contribution of the HFS Individual Defendants. The language to which Deutch refers10 was directed to our concern that the district court had approved a class action settlement without providing an adequate record that would enable us to fulfill our review function.
Unlike the situation in Girsh, there was no deficiency in the record in this case. The District Court considered the nine Girsh factors before finding the Cendant settlement to be fair, reasonable, and adequate. The court recognized that questions had been raised about the value of the HFS Individual Defendants’ contribution and noted that “the HFS Defendants have agreed to contribute to the class 50%
Deutch further argues that the HFS Individual Defendants’ promise to give 50% of their recovery against E&Y to the class was illusory. He states that “the settlement creates no obligation for the HFS Defendants to prosecute the suit after the settlement is final or to guarantee some minimum amount commensurate with their liability - even though the other parties have fully complied with their obligations.” Br. of Appellant at 44.
However, implicit in the settlement is a promise to make a good faith effort to seek recovery against E&Y. See Russell v. Princeton Labs., Inc., 50 N.J. 30, 38, 231 A.2d 800, 805 (1967) (“A contract should not be read to vest a party . . . with the power virtually to make his promise illusory.“); Nolan v. Control Data Corp., 243 N.J. Super. 420, 431, 579 A.2d 1252, 1258 App. Div. (1990) (implying a good faith requirement because a “[l]iteral interpretation of these clauses would go far towards making these contracts illusory, a result which courts usually seek to avoid“); 2 Joseph M. Perillo & Helen Hadjiyannakis Bender, Corbin on Contracts § 5.28, at 149-50 (rev. ed. 1995) (“An implied obligation to use good faith is enough to avoid the finding of an illusory promise.“).11
Deutch also argues that the District Court was required, but failed, to determine the amount paid into the
Once again, we conclude that whether, and to what extent, the HFS Individual Defendants are covered under the contribution bar is better presented in a contribution claim, if any, brought by Cendant, E&Y, or the CUC Individual Defendants against those defendants. We need only hold that the District Court was not required under the Reform Act or
Finally, Deutch argues that because Cendant is paying the entire cash amount of the settlement, it constitutes an impermissible indemnification of the HFS Individual Defendants for securities law violations. Deutch again cites to Eichenholtz, 52 F.3d at 483, where we held that there was no express or implied right to indemnification under the federal securities laws and recognized that “federal courts disallow claims for indemnification because such claims run counter to the policies underlying the federal securities acts.” Id. at 484.
Ordinarily, indemnification refers to the reimbursement by a corporation to its directors and officers for liabilities
III. CONCLUSION
Deutch has not convinced us that his objections to the settlement are supported by the applicable law, nor has he persuaded us that new rules are required for a derivative action plaintiff. Whether Cendant‘s board members breached their fiduciary duties to the corporation is best addressed in a derivative action, and not in connection with approval of a class action settlement. The District Court was not required by
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