CollectACheck, Inc. v. Check Collection & Recovery, Inc. et al

Filing 15

ORDER denying 6 Defendants' Motion to Dismiss, by Judge David M. Ebel on 5/6/09.(gms, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO C i v i l Action No. 09-cv-00186-DME-KMT C O L L E C T A C H E C K , INC., Plaintiff, v. C H E C K COLLECTION & RECOVERY, INC., VICTOR LONG, AND CHARLES HINLEY, Defendants. O R D E R DENYING DEFENDANTS' MOTION TO DISMISS I n this diversity action, Plaintiff CollectACheck, Inc. ("CollectACheck") b r i n g s claims of breach of contract, fraud, and negligent misrepresentation u n d e r Colorado law against Defendants Check Collection & Recovery, Inc. ( " C C & R " ) , Victor Long, the CEO and a shareholder of CC&R, and Charles H i n l e y , the CFO and a shareholder of CC&R. This case is currently before this c o u r t on Defendants' motion to dismiss for lack of jurisdiction pursuant to Fed. R . Civ. P. 12(b)(1) and for failure to state a claim pursuant to Fed. R. Civ. P. 1 2 ( b ) ( 6 ) . (See Doc. 6.) Defendants argue that CollectACheck's claims should b e barred because the parties entered an agreement stating that neither party w o u l d sue the other before December 19, 2008, and CollectACheck filed this a c t i o n in violation of that agreement on December 18. CollectACheck does not d e n y that it entered an agreement in which it promised not to bring suit before D e c e m b e r 19. CollectACheck argues, however, that its breach of the agreement

was immaterial and, therefore, the court should not preclude it from pursuing its claims. This court notes that the authorities are split over whether to preclude a l a w s u i t filed in violation of an agreement not to sue for a limited time. The court d e c l i n e s , however, to weigh in on that general question in this case because, r e g a r d l e s s of how the Colorado Supreme Court would decide that general q u e s t i o n , it would not preclude a suit filed in violation of an agreement not to s u e for a limited time where, as here, the Defendants have failed to demonstrate t h a t the breach of that agreement was material. This court exercises its jurisdiction pursuant to 28 U.S.C. § 1332 because t h e parties are diverse and the amount in controversy exceeds $75,000, and D E N I E S the Defendants' motion to dismiss.

I. Background C o l l e c t A C h e c k entered into an Asset Purchase Agreement (APA) with the D e f e n d a n t s in late 2007. 1 Pursuant to that agreement, CollectACheck p u r c h a s e d CC&R's Check Collection Business assets. CollectACheck claims t h a t , shortly after that transaction closed, it discovered that Defendants had m a d e material misrepresentations about the purchased assets. CollectACheck a l s o alleges that Defendants have failed to honor some of the commitments they m a d e under the APA and that Defendant Long trespassed onto CollectACheck's p r o p e r t y . Pursuant to Article 7.13 of the APA, this dispute is governed by The APA is dated October 31, 2007, but Article 2.4 provides that the c l o s i n g may occur as late as December 31, 2007.
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C o l o r a d o law. The APA provided that CollectACheck would pay CC&R a total of $ 1 , 4 3 0 , 0 0 0 . CollectACheck agreed to pay $350,000 at closing, plus a p p r o x i m a t e l y $210,000 more in November 2007. CollectACheck claims that it h a s made those payments. The $870,000 balance was to be paid in monthly i n s t a l l m e n t s based on a promissory note "secured by the Purchased Assets." (Doc. 6 Ex. D1 at 22.) 2 However, the APA provided that the monthly amount

p a i d under the note, as well as the total purchase price, could be adjusted b a s e d on the performance of the purchased assets. CollectACheck claims that, a t least in part due to the wrongdoings alleged in this case, it is entitled to a $ 5 9 2 , 5 5 6 reduction in the total purchase price. CollectACheck has also s u s p e n d e d its monthly payments due to the Defendants' alleged wrongdoings. Defendants have filed a separate lawsuit against CollectACheck, challenging C o l l e c t A C h e c k ' s failure to continue payments on the promissory note, in the U n i t e d States District Court for the Southern District of Georgia. 3 (See Doc. 6 E x . D1.) The APA has been included in a number of filings before this court. The m o s t legible copy appears as part of Exhibit D1 to the Defendants' motion to d i s m i s s . The court will, therefore, cite to that copy of the APA. Although this case is before this court on a motion to dismiss under Rule 1 2 ( b ) ( 6 ) , the court may take judicial notice of court documents in deciding this m o t i o n . See Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008) (relying o n "state court documents of which the district court took judicial notice" in its r e c i t a t i o n of the facts on its review of a district court's decision regarding a m o t i o n to dismiss); see also Pompa v. Am. Family Mut. Ins. Co., 520 F.3d 1139, 1 1 4 9 (10th Cir. 2008) ("In essence, judicially noticeable facts are incorporated i n t o the complaint.").
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B e f o r e CollectACheck initiated this lawsuit, the parties attempted to settle t h e i r disputes. As those settlement negotiations continued, CollectACheck a p p a r e n t l y became concerned that, if it waited any longer to file its lawsuit, it m i g h t lose some of the protections it had been granted in the APA. Article 6.1 o f the APA states, "All of the representations, warranties and covenants of the r e s p e c t i v e Parties and the Seller's Shareholders contained in this Agreement, as s e t forth in Articles III and IV of this Agreement, shall survive the Closing for a p e r i o d of twelve (12) months from the Closing Date." (Doc. 6 Ex. D1 at 31.) Arcticle 6.2 provides, inter alia, that the Defendants would indemnify C o l l e c t A C h e c k for losses that arose from "any breach of Seller or Seller's S h a r e h o l d e r s ' representations, warranties, or covenants set forth in this A g r e e m e n t during the period of time that each such representation, warranty, or c o v e n a n t survives." (Id.) The parties apparently shared the concern (or, in the c a s e of the Defendants, belief) that these provisions could be read to prevent C o l l e c t A C h e c k from claiming the protections provided in the APA in any lawsuit f i l e d after the 12 month-period provided for in Article 6.1. (See Doc. 8 at 3 n.1 ( n o t i n g CollectACheck's concern "that the APA required indemnification claims . . . to be asserted before expiration of the survival period"); Doc. 6 at 6 ( c o m p l a i n i n g that CollectACheck "relies upon the tolling provision to the extent it p r e s e r v e s its right to file suit [or, more precisely, its right to claim the protections o f the APA in a lawsuit], but ignores the tolling provision which specifically

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p r o h i b i t s the filing of a lawsuit until December 19, 2008").) 4 In an apparent a t t e m p t to continue negotiating a settlement without sacrificing CollectACheck's a b i l i t y to seek all of the protections provided by the APA in a lawsuit, the parties a g r e e d "to toll the 12 month survival period provided for in paragraph 6.1 of the A s s e t Purchase agreement for an additional 19 days (until December 19, 2008) ( t h e `Tolling Period') in order to facilitate the settlement of their dispute." 5 (Doc. 6 Ex. C at 2.) They further agreed "not to file any legal actions against the other p a r t y during the Tolling Period." (Id.)

II. Discussion A . The Appropriate Basis for Defendants' Motion D e f e n d a n t s argue initially that CollectACheck lacks standing to bring this l a w s u i t because of its promise not to file suit until December 19, 2008. Defendants fail, however, to provide any precedent in support of their argument t h a t a plaintiff who has signed an agreement not to sue lacks standing to file a c l a i m in violation of that agreement, and this court has found none. Rather, it a p p e a r s that most courts have addressed similar issues under Fed. R. Civ. P. 1 2 ( b ) ( 6 ) and 56. See, e.g., Brooks v. Timberline Tours, Inc., 127 F.3d 1273, This court does not mean to suggest that the parties' interpretation of t h e s e provisions was reasonable. In fact, as the court explains below, these p r o v i s i o n s merely related to the period under warranty and, apart from any p o t e n t i a l statute of limitations issues which are not addressed in this case, these w a r r a n t i e s do not depend on the timing of the lawsuit. The parties apparently entered two tolling agreements, but only the s e c o n d one is at issue here.
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1 2 7 4 - 7 5 (10th Cir. 1997) (affirming district court's decision granting summary j u d g m e n t for defendants based in part on a covenant not to sue); V-Formation, I n c . v. Benetton Group SpA, No. 02-cv-02259-PSF-CBS, 2006 WL 650374, *3 ( D . Colo. Mar. 10, 2006) (addressing defendant's motion for summary judgment b a s e d in part on a covenant not to sue); Truong v. Smith, 28 F. Supp. 2d 626, 6 2 8 (D. Colo. 1998) (converting defendant's Rule 12(b)(6) motion to dismiss, b a s e d on a release that plaintiffs signed, into a motion for summary judgment b e c a u s e the defendant's motion presented materials outside the pleadings); R u t l e d g e v. Int'l Bus. Machines Corp., Civ. A. No. 91-A-226, 1991 WL 214270, * 1 - * 3 (D. Colo. Oct. 15, 1991) (addressing defendant's argument that plaintiff's c l a i m s were barred by a waiver or release on defendant's motion for summary j u d g m e n t ) . This court sees no reason to depart from that practice in this case. Defendants also argue, without support, that the parties' agreement not to s u e removes this court's jurisdiction to hear this case. However, in an a n a l o g o u s case involving a defendant's attempt to enforce an arbitration a g r e e m e n t , this court recently clarified that "[t]he mere existence of an a r b i t r a t i o n agreement [] does not divest a federal court of subject matter j u r i s d i c t i o n . " Will v. Parsons Evergreene, LLC, No.08- cv-00898-DME-CBS, 2 0 0 8 WL 5330681, *1 (D. Colo. Dec. 19, 2008). An agreement not to sue will a l s o not generally divest a court of subject matter jurisdiction. 6 Therefore, this The one exception to this rule is that an agreement not to sue will r e m o v e a court's jurisdiction to hear a claim for declaratory judgment. See Int'l A u t o m a t e d Sys., Inc. v. IBM, 595 F. Supp. 2d 1197, 1208-09 (D. Utah 2009)
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c o u r t will analyze this case under Fed. R. Civ. P. 12(b)(6). 7 U n d e r Rule 12(b)(6), Defendants have the burden to demonstrate that C o l l e c t A C h e c k has failed to state a claim upon which relief could be granted. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) ("The defendant h a s the burden of showing that the plaintiff has failed to state a claim for relief.").

B. Courts and Commentators are Divided Over Whether an Agreement not to Sue for a Limited Time Should Bar a Suit Filed Within that Time Period C o u r t s are split over how best to enforce an agreement not to sue for a l i m i t e d time. Some courts hold that such an agreement should bar any suits
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( c i t i n g 28 U.S.C. § 2201(a) and Benitec Australia, Ltd. v. Nucleonics, Inc., 495 F . 3 d 1340, 1345 (Fed. Cir. 2007)). The fact that this court is treating this claim as a motion to dismiss p u r s u a n t to Rule 12(b)(6) does not prevent the court from considering the T o l l i n g Agreement or the APA. The court may consider the APA because it was a t t a c h e d to CollectACheck's complaint. See Dean Witter Reynolds, Inc. v. H o w s a m , 261 F.3d 956, 961 (10th Cir. 2001). The court may also consider the T o l l i n g Agreement because its provision extending Article 6.1 of the APA is c e n t r a l to CollectACheck's claim and is referred to in paragraph 56 of the c o m p l a i n t . See Pace, 519 F.3d at 1072-73 (noting "that a document central to t h e plaintiff's claim and referred to in the complaint may be considered in r e s o l v i n g a motion to dismiss, at least where the document's authenticity is not i n dispute") (quoting Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1 2 4 9 , 1253-54 (10th Cir. 2005)). However, because this court is analyzing this c a s e under Rule 12(b)(6), it will not consider most of the other exhibits attached t o the Defendants' motion, CollectACheck's response, or Defendants' reply. Nor w i l l the court convert this motion into a motion for summary judgment because t h o s e additional documents are not necessary for the court's decision.
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f i l e d during that time. See Shay v. First Federal of Miami, Inc., 429 So.2d 64, 6 5 - 6 6 (Fla. Dist. Ct. App. 1983) (holding that plaintiff who entered into an a g r e e m e n t not to sue for a limited time had "waived the enforcement" of any c a u s e of action he would otherwise have against the defendant); New York S t a t e Energy Research and Dev. Auth. v. Nuclear Fuel Serv., Inc., 561 F. Supp. 9 5 4 , 965-66 (W.D.N.Y. 1983) (implying that a covenant not to sue for a limited t i m e would bar a suit brought within that time, but refusing to dismiss the case o n a motion for summary judgment because factual questions remained r e g a r d i n g whether the plaintiff had actually promised not to sue and, if so, for h o w long); Staver & Walker v. Missimer, 32 P. 995, 996-97 (Wash. 1893) ( h o l d i n g "that a promise to forbear to sue for a definite time, where the promise i s based upon a sufficient consideration, can be pleaded in bar to the action"). Other courts disagree, holding that a party who files a suit in violation of i t s agreement not to sue for a limited time may be liable for damages resulting f r o m its breach of contract, but should not be barred from bringing its case. See K u n z a v. St. Mary's Reg'l Health Ctr., 747 N.W.2d 586, 592-93 (Minn. Ct. App. 2 0 0 8 ) (holding that, unlike an agreement to never sue--which functions as a r e l e a s e of defendant's liability--an agreement not to sue for a limited time does n o t have "the effect of a release and [does not] serve as a bar to [plaintiff's] a c t i o n " ) ; Walling v. Warren, 2 Colo. 434 (Colo. Terr. 1874) (holding that a c o v e n a n t not to sue for a limited time would not bar an action filed within that t i m e ) ; Mendenhall v. Lenwell, 5 Blackf. 125 (Ind. 1839) (stating that "the law is s e t t l e d " that a covenant not to sue for a limited time "is no bar to an action

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b r o u g h t before the expiration of the given time"); Hawes v. Marchant, 11 F. Cas. 8 7 0 (Cir. Ct. D.R.I. 1852). Scholarly authorities are also split on this issue. Compare 12 Richard A. L o r d , Williston on Contracts § 36:16 (4th ed.) ("A covenant not to sue for a l i m i t e d time does not suspend or affect in any other way the covenantor's right t o sue, but the covenantee's only remedy is by an action for damages for breach o f the covenant."); with Restatement (Second) Contracts § 285 ("[A] contract not t o sue for a limited time bars an action to enforce the duty during that time.").

C . This Court Does not Need to Resolve this Issue Now A s this case concerns an issue that has not been decided by the Colorado S u p r e m e Court, this court's duty, while sitting in diversity, is to ascertain how t h e Colorado State Supreme Court would decide the legal issues raised in this c a s e . 8 See Blackhawk-Central City Sanitation Dist. v. Am. Guar. and Liability The Colorado Territorial Court decision cited on the previous page, that h o l d s that an agreement not to sue for a limited time will not bar a suit filed w i t h i n that time, does not control this case for two reasons. First, since that d e c i s i o n came from a territorial court, and not a state court, it is probably not b i n d i n g authority on the state courts. Cf. Glatt v. Feist, 156 N.W.2d 819, 825-26 ( N . D . 1968) (treating decision of territorial supreme court as persuasive, but not b i n d i n g , authority); but see Turnbull v. Bonkowski, 419 F.2d 104, 105-06 (9th C i r . 1969) (deferring to Alaskan territorial court's interpretation of statutory l a n g u a g e that was identical to the language used by the state despite the fact t h a t the Alaska State Supreme Court had not adopted that interpretation). Second, the only reason the court in Walling gave for its decision--that it would b e unfair to permanently prevent a plaintiff from ever filing suit merely for v i o l a t i n g an agreement not to sue for a limited for a limited time to file s u i t -- d o e s not apply in this case. See Walling, 2 Colo. at 437 (stating that it w o u l d be unfair to preclude suit because "if the defendant plead such covenant (continued...)
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I n s . Co., 214 F.3d 1183, 1188 (10th Cir. 2000) ("When the Colorado Supreme C o u r t has not yet addressed an issue, we seek to predict how that court would d e c i d e the question."). This "court's prediction of state law" may look to the f o l l o w i n g sources for guidance: (1) "lower state court decisions and state S u p r e m e Court dicta"; (2) "the general rule on the issue"; (3) the rule in other s t a t e s looked to by [Colorado] courts when they formulate their own substantive l a w " ; and (4) "other available legal sources, such as treatises and law review c o m m e n t a r i e s . " DP-Tek, Inc. v. AT & T Global Information Solutions Co., 100 F . 3 d 828, 831 (10th Cir. 1996) (quoting Menne v. Celotex Corp., 861 F.2d 1453, 1 4 6 4 - 6 5 n.15 (10th Cir. 1988)). In this case, this court does not need to decide how the Colorado S u p r e m e Court would generally enforce an agreement not to sue for a limited t i m e . Regardless of the answer to that question, the Colorado Supreme Court w o u l d certainly not bar a suit filed in violation of an agreement not to sue for a l i m i t e d time where, as here, the defendant has failed to demonstrate that the p l a i n t i f f ' s breach was material.

(...continued) i n bar and succeed upon his plea, the plaintiff will be precluded from bringing his s e c o n d action after the time limited has expired"). Unlike the court in Walling, w h i c h apparently believed that a dismissal of plaintiff's claims would p e r m a n e n t l y prevent the plaintiff from raising those claims again, this court can d i s m i s s this case without prejudice to CollectACheck's ability to file suit anytime a f t e r December 19, 2008, thus effectuating the terms of the contract without u n d u l y punishing CollectACheck. Therefore, while Walling may provide some s u p p o r t for CollectACheck's position, it does not resolve this issue for this court.

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C o l o r a d o courts generally disfavor specific performance, and prefer to a l l o w parties to breach their contracts and face the ensuing consequences. See, e.g., Schreck v. T & C Sanderson Farms, Inc., 37 P.3d 510, 515 (Colo. Ct. A p p . 2001) ("Equity will not decree specific performance of a contract to convey l a n d if there is an adequate remedy at law."); see also Leach v. Fuller, 173 P. 4 2 7 , 427-28 (Colo. 1918) ("The ground of jurisdiction to compel specific p e r f o r m a n c e of an agreement is that the party seeking this relief cannot be fully c o m p e n s a t e d by an award of damages at law. Some special circumstances m u s t exist to take the case out of the general rule that the remedy for breach of c o n t r a c t is by an action for damages.") (internal citation omitted). Thus, the b u r d e n generally falls on the party seeking specific performance to demonstrate t h e inadequacy of damages as a remedy. See id. at 428. In this case, D e f e n d a n t s ' request that this court preclude this suit essentially asks that the c o u r t order specific performance of the parties' agreement not to sue before D e c e m b e r 19, 2008. This court is very reluctant to grant that relief without a s h o w i n g that a damages remedy would be inadequate. Further, although Colorado law permits a party to maintain a cause of a c t i o n for an immaterial breach of contract, the only remedy that Colorado c o u r t s recognize for such a breach is nominal damages. See Interbank I n v e s t m e n t s , LLC v. Eagle River Water and Sanitation Dist., 77 P.3d 814, 818 ( C o l o . Ct. App. 2003) ("When a plaintiff establishes breach, but does not prove a c t u a l damages, the plaintiff is entitled to nominal damages."). Given C o l o r a d o ' s general preference for damages to remedy contract breaches, and

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t h e fact that Colorado has only allowed a party to recover nominal damages for a n immaterial breach of contract, this court determines that the Colorado S u p r e m e Court would not bar a suit filed before the termination of an agreement n o t to sue for a limited time where the breach of that agreement was immaterial. I n this case, Defendants have failed to demonstrate the materiality of C o l l e c t A C h e c k ' s breach of its agreement not to file suit until December 19, 2008 a n d , therefore, have not met their burden of showing that CollectACheck should b e barred from bringing this lawsuit. CollectACheck filed its lawsuit less than f o u r hours before December 19. (See Doc. 8 at 3.) Defendants argue they w e r e harmed by this breach because it enabled CollectACheck to "win a race to t h e courthouse." (Doc. 6 at 6.) As CollectACheck notes, however, Defendants w a i t e d three more days before filing their own lawsuit against CollectACheck. It a p p e a r s , therefore, that CollectACheck was going to win that race to the c o u r t h o u s e regardless of whether it complied with the terms of the Tolling A g r e e m e n t . Further, Defendants have failed to show how CollectACheck's early f i l i n g caused the Defendants any harm. Defendants could assert any claims t h e y have against CollectACheck as counterclaims in this suit, and the D e f e n d a n t s have provided this court with no reason to think that would place the D e f e n d a n t s at a disadvantage. Defendants further argue that they "will undoubtedly suffer significant f i n a n c i a l prejudice as a result of Plaintiff's actions for . . . Defendants did file t h e i r own Complaint . . . . [and, a]s such, if Defendants' Motion is denied, it will b e required to defend two (2) separate actions asserting identical claims . . . ."

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( D o c . 9 at 5.) This argument also lacks merit. For starters, Defendants have f a i l e d to show why they could not voluntarily dismiss their claims in the other c a s e and bring those matters as counterclaims in the instant lawsuit. Alternately, Defendants may be able to transfer that case to the District of C o l o r a d o and consolidate the two cases pursuant to Fed. R. Civ. P. 42. Thus, D e f e n d a n t s have failed to show how CollectACheck's breach may have harmed t h e Defendants. I r o n i c a l l y , CollectACheck's own brief provides the most plausible, but still u n c o n v i n c i n g , reason that its breach may have harmed the Defendants. CollectACheck argues that it filed this case on December 18, 2008 in order to a v o i d any doubt that it was entitled to the full protections provided in the APA. If C o l l e c t A C h e c k ' s fears were well-founded, and it would not have been entitled to t h o s e protections if it filed suit the following day, its breach of the agreement not t o sue may have been material because that one-day difference would have e n a b l e d CollectACheck to claim contractual protections that it would not o t h e r w i s e have had. However, this court fails to see how a suit filed only one d a y later would have prevented CollectACheck from seeking the full protections p r o v i d e d under the APA. Apart from any issues relating to the statute of l i m i t a t i o n s , which have not been raised in this case, the protections provided in t h e APA do not depend on the timing of a lawsuit. Article 6.1 provides, inter a l i a , that the "representations, warranties and covenants . . . contained in this a g r e e m e n t . . . shall survive . . . for a period of twelve (12) months from the C l o s i n g Date." (Doc. 6 Ex. D1 at 31.) This provision states nothing about the

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t i m i n g of a lawsuit based on those representations, warranties and covenants. Rather, it relates to the timing of the breach--if a breach occurs more than t w e l v e months after the Closing Date (or, in light of the Tolling Agreement, after D e c e m b e r 19, 2008), a complaining party would be unable to seek the p r o t e c t i o n s provided by the "representations, warranties and covenants" in the c o n t r a c t . However, a party who sued for a breach of the APA that occurred d u r i n g the survival of the APA's "representations, warranties and covenants" w o u l d be entitled to all those protections even if the lawsuit was filed after their expiration. S i m i l a r l y , Article 6.2 provides, inter alia, that the Defendants would i n d e m n i f y CollectACheck for losses that arose from "any breach of Seller or S e l l e r ' s Shareholders' representations, warranties, or covenants set forth in this A g r e e m e n t during the period of time that each such representation, warranty, or c o v e n a n t survives." (Id.) This provision also does not make the protections it p r o v i d e s contingent on the timing of the lawsuit. Like Article 6.1, Article 6.2 m e r e l y indicates that certain protections expire at a certain time. Any breach t h a t takes place after the expiration of those protections will not be covered by t h e indemnification provision. There is no reason to think, however, that a party w o u l d be precluded from claiming the protections of these warranties for a b r e a c h committed while those warranties remained valid--even if the lawsuit w a s filed after the termination of the survival period. Therefore, C o l l e c t A C h e c k ' s breach of its agreement not to sue until December 19, 2008 h a d no material impact on the protections it could claim and, since

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C o l l e c t A C h e c k ' s breach was immaterial, this court will not preclude C o l l e c t A C h e c k from proceeding with this lawsuit. 9

III. Conclusion F o r the foregoing reasons, this court DENIES Defendants' motion to dismiss. DONE AND SIGNED this 6th day of May, 2009. B Y THE COURT: s / David M. Ebel David M. Ebel U . S. Circuit Court Judge

This court also notes that, in light of the parties' apparent misreading of t h e APA, the Tolling Agreement may have been intended to allow CollectACheck t o file suit on December 19, 2008 and still claim the protections that the parties t h o u g h t would be unavailable for suits filed after the protections lapsed. In other w o r d s , in light of the parties' misunderstanding, it appears that the Tolling A g r e e m e n t may have been intended to extend the warranties provided in the A P A one day beyond the time during which the parties agreed not to sue. If that i n t e r p r e t a t i o n of the Tolling Agreement is correct, then CollectACheck's breach w a s certainly immaterial because it could have filed the very next day and been e n t i t l e d to the same protections. CollectACheck relies primarily on this i n t e r p r e t a t i o n of the Tolling Agreement to support its argument that its breach w a s immaterial. However, this interpretation would go against the plain l a n g u a g e of the Tolling Agreement, which indicates that the "Tolling Period" is c o e x t e n s i v e with the period during which the parties agree not to bring suit. In e i t h e r case, the interpretation of the Tolling Agreement is not relevant to the c o u r t ' s decision because the court rejects the underlying premise of this entire l i n e of argument, and is of the opinion that the APA does not make any of its p r o t e c t i o n s contingent on the time that a lawsuit was filed. This court does not, t h e r e f o r e , express any opinion about the correct interpretation of the Tolling Agreement.

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